Too much information? Commissioners discuss new law and ongoing challenges at CBA Roundtable

  • December 09, 2019

The order making powers in the new federal Access to information Act and the challenges of dealing with a growing volume of requests emerged as themes during the annual Commissioners’ roundtable at the CBA Access to Information and Privacy Law Symposium in Ottawa on October 18.

Participants included:

  • Jill Clayton, Commissioner, Office of the Information and Privacy Commissioner of Alberta
  • David Goodis, Assistant Commissioner, Office of the Information and Privacy Commissioner of Ontario
  • Michael Harvey, Commissioner, Office of the Information and Privacy Commissioner for Newfoundland and Labrador
  • Brent Homan, Deputy Commissioner, Office of the Privacy Commissioner of Canada
  • Caroline Maynard, Commissioner, Office of the Information Commissioner of Canada
  • Michael McEvoy, Commissioner, Office of the Information and Privacy Commissioner for British Columbia

Maynard commented on the reforms to the Access to Information Act. After two years of discussion and amendment, it received Royal Assent on June 21, 2019, and makes up the most significant amendments to the act since it originally came into force in 1983.

While acknowledging that not every stakeholder is happy with the legislation, Maynard said, “I think that we got a few really good gains, especially with the fact that now I can make orders and order some exposure by institutions.”

"I'm very excited about this, I can't wait to issue my first order", she joked, earning a burst of laughter from the audience.

As the number of requests grow across jurisdictions and the complexity of many of those requests increases as well, resources for monitoring and policing – both in the Commissioners’ offices and in the government departments -- came up repeatedly. Clayton said that her office in Alberta has been overwhelmed for several years, and she has reported that it is “fast approaching a crisis situation – this is really getting out of hand.”

The federal Office of the Information Commissioner reported just under 76,000 requests in 2015-16 and Maynard said there were between 110,000 and 120,000 requests in 2018-19. Maynard cited the elimination of fees in 2016 (other than the $5 filing fee) as a catalyst for the growth in volume.

“We have institutions telling us that they are having a hard time convincing the complainant or the requester to reduce the scope of their request, because they don’t have to pay for it. So we're trying to help (institutions) find ways to negotiate or talk to them,” said Maynard.

Maynard said that timeliness complaints have risen sharply – her office went from 600 complaints last year to about 2,000. “People are tired of waiting, so they are asking me to order agencies to meet certain deadlines” she said.

“Maybe if I do start getting some orders out there, Ministers and deputy ministers will pay attention and give (institutions) the resources they need.”

Frivolous and vexatious requests are also seen as contributors to the resource challenges facing regulators. The new federal law allows institutions to ask the Commissioner for permission not to respond to requests that they believe are made in bad faith, vexatious or an abuse of access rights – as of the roundtable, Maynard said one such request had been received.

Clayton said her office has seen an uptick of repeated requests in recent years. Section 55 of Alberta’s privacy act allows public bodies to disregard such requests, and courts have become increasingly involved in ruling on ‘vexatious’ litigants.

“I think we all know that there are individuals who do abuse the system and the section 55 provisions are there for a reason. They're not interested in getting access to information they really are trying to grind down the public body, so those provisions are very important.”

Newfoundland and Labrador has similar legislation, but Harvey — as did Clayton —cautioned against being too aggressive in applying the frivolous or vexatious label. “Are they vexations, or are they just vexing?” asked Harvey. “They’re vexing for us, they're vexing for the public body, they’re vexing for themselves.”

Referring to one individual, Harvey said: “There's no doubt that he is vexing on the public body….but he's at least right as often as he is wrong. In fact, I’ve learned much from him because he really keeps us on our toes.”

McEvoy also reminded the audience of the objective of access to information.

“Every public body that I talk to universally complains about the pressures that they're under and the resources that they have to dedicate to these issues, and I completely get that,” he said.  “But I think sometimes we’ve forgotten first principles. The information that we're talking about here actually belongs to the public.”


The Regulators’ Perspective at the CBA Access to Information and Privacy Law Symposium featured (left to right) federal Information Commissioner Caroline Maynard; Ontario Assistant Commissioner David Goodis; Alberta Information and Privacy Commissioner Jill Clayton; Brent Homan, Deputy Privacy Commissioner of Canada; Newfoundland and Labrador Information and Privacy Commissioner, Michael Harvey; and British Columbia Information and Privacy Commissioner, Michael McEvoy.