‘Loophole’ denies access to government info
Advocates wary as ‘vexatious’ rule invoked
OTTAWA • A man’s request for government records has been denied after he was branded “vexatious” in a ruling that is troubling freedom of information advocates.
There are fears government departments could use the “vexatious” label — introduced by the Liberals in the last parliament — as a tactic to prevent the public’s right to know.
“Any loophole put in the law is there for the government to hide something that people have the right to know,” said Duff Conacher, cofounder of Democracy Watch, a government accountability group.
The high-profile Mark Norman trial highlighted how the government can abuse the access to information law.
Lawyers for the vice-admiral, who were defending him on a charge of breach of trust, said they were obstructed from finding all the government records they requested.
A witness alleged the Department of National Defence deliberately did not use Norman’s name in internal files to keep records from being revealed publicly. The witness testified his superior told him: “Don’t worry, this isn’t our first rodeo. We made sure we never used his name.”
In a decision posted recently, Information Commissioner Caroline Maynard ruled against a man’s access to information request, finding it was “vexatious” in part because he had filed 893 requests and more than a thousand complaints over the past 17 years.
The access to information law allows Canadians to request government studies, documents, briefing notes, emails and anything else a department holds. It is used by journalists, but also researchers, political parties, advocacy groups and businesses looking to find out more about the decisions the government makes.
In the last parliament, the Liberals made multiple changes to the legislation. They included making some information open by default, but they fell well short of the promises made during the campaign to allow more access to government information.
The bill also included a new provision allowing a department or government institution to deny a request that is deemed “vexatious, frivolous or abusive,” with the information commissioner’s approval.
Neither the government department nor the requester is named in the commissioner’s decision, but both had the opportunity to make their case.
The department argued the requests were often similar and the complaints were an abuse of the process, the commissioner said the requester did not prevent a strong enough counter argument.
“The commissioner was not persuaded by the requester’s argument that the repeated access to information requests are necessary because of alleged changes in terminology used by the institution, or that different records are being sought as a result of differences in wording,” reads the decision.
Staff from the commissioner’s office said she plans to ask for changes during a mandated review that would allow her to reveal more detail about her decisions.
Conacher said some of the requests he has personally made have required multiple applications because a government department was unhelpful or denied there were any records.
“I have had to essentially refile it five times, because they played games or didn’t give me anything.”
Sean Holman, an associate professor of journalism at Mount Royal University in Calgary, said when he saw the rule against vexatious requests in the legislation he understood where the government was coming from, but he knew it would be problematic.
“Government will take any opportunity it can to thwart the public’s right to know, unfortunately,” he said. “When government has a loophole to use, they use it.”
Holman said the government already controls most of the levers in the access process and often misses deadlines
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or provides incomplete responses.
“It is a bit rich for the government to be complaining about how applicants are behaving and essentially trying to punish them,” he said.
“There is an imbalance here and the imbalance is primarily in favour of government.”
The legislation allowing for requests to be judged vexatious came into force last summer. Since then two other requests to government departments have been turned down.
In one case someone was asking for documents that had already been released but covering a larger time frame, and in the other case the requester was a former employee of the institution and had been abusive in his correspondence.
In both cases, the commissioner found the government department wasn’t providing enough evidence to make its case.
Conacher said this is another one of the dangers of this new system, because government departments can delay a process just by claiming something is vexatious and waiting for the commissioner to rule against them.
He said this could potentially bog down the commissioner’s office, which handles complaints about the government’s refusal to release information.
“You could have a backlog very soon in this area and then boom, it becomes another easy delay tactic,” he said. “Any new rule allows someone to abuse it and if they use it enough, it will lead to a huge backlog.”