Article 6.1 une Loi dans l’acces a l’information : Autorisation de ne pas donner suite a une demande d’acces

Symposium annuel sur le droit de la vie privee ainsi que l’acces a l’information Association du Barreau canadien

par Allison Knight, Directrice principale, Enquetes

(Le discours prononce fait foi.)

Autorisation de ne pas donner suite a des demandes d’acces futiles / abusives / entachees de mauvaise foi

  • L’article 6.1 d’une Loi concernant l’acces a l’information (loi federale) prevoit que le responsable de l’institution va demander a J’ai Commissaire a l’information l’autorisation de ne point donner suite a une demande d’acces si, a le avis, la requi?te reste :
    • vexatoire;
    • entachee de mauvaise foi;
    • ou constitue autrement un abus du droit de faire une demande de communication.
  • Entree en vigueur le 21 juin 2019

Orientation generale

  • PROCESSUS : exige d’autorisation a la commissaire a l’information pour ne pas donner suite a une demande d’acces
  • INTERPRETATION : Demande d’autorisation a J’ai commissaire a l’information pour ne point donner suite a une demande d’acces

Demande d’autorisation prematuree : obligation de preter assistance

  • Mes institutions devraient reclamer l’autorisation de ne pas donner suite a une demande d’acces seulement apres avoir fait l’ensemble des efforts raisonnables pour aider le demandeur, conformement a l’obligation de preter assistance. [Paragraphe 4(2.1)]
  • Ceci comprend le fait d’aider les demandeurs a clarifier le fond de leur requi?te d’acces (article 6) et, si necessaire, a en reduire la portee. (6.1-0004, 6.1-0005)
  • Si la Commissaire n’est nullement d’avis que l’institution s’est acquittee de son obligation, elle peut conclure que la demande d’autorisation reste prematuree. (6.1-0004, 6.1-0005)

La demande d’acces satisfait-elle a toutes les criteres de l’article 6?

L’article 6 une Loi exige que la demande d’acces d’un demandeur soit redigee en des termes suffisamment precis pour permettre a votre fonctionnaire experimente de l’institution de trouver le document sans problemes serieux.

  • Si l’institution etablit, apres s’etre acquittee de son obligation de preter assistance, que J’ai exige d’acces ne satisfait jamais aux criteres de l’article 6, cette dernii?re peut aussi en Realiser part au demandeur.

Une demande d’autorisation presentee en vertu de l’article 6.1 ne decharge ni les demandeurs de leurs obligations au titre de l’article 6 ni l’institution de son obligation au titre du paragraphe 4(2.1). (6.1-0005)

Points a considerer au cours d’une requi?te d’autorisation

Le Commissariat a l’information s’attend a ce que les requi?tes d’autorisation :

  • la nature et J’ai portee en demande d’acces;
  • l’objectif une demande d’acces;
  • la formulation en demande d’acces;
  • le moment ou la requi?te d’acces est presentee via rapport a d’autres evenements pouvant y etre lies;
  • le nombre de requi?tes d’acces similaires faites par le meme demandeur ou via des demandeurs qui lui sont lies.

Points a voir lors en requi?te d’autorisation

Le Commissariat est en mesure de tenir compte des facteurs suivants lorsqu’il doit etablir si une demande d’acces est vexatoire, entachee de mauvaise foi ou constitue autrement un abus du droit d’acces :

  • la nature et J’ai portee en demande d’acces;
  • l’objectif d’la demande d’acces;
  • la formulation une demande d’acces;
  • l’instant ou la exige d’acces reste presentee avec rapport a d’autres evenements pouvant y etre lies;
  • le nombre de requi?tes d’acces similaires faites par le meme demandeur ou avec des demandeurs qui lui seront lies.

Questions a prendre en compte

  • L’objectif principal d’une demande d’acces est-il contraire a l’objet d’la Loi? Y a-t-il une motivation a la base en demande autre que le droit d’acces?
  • La demande d’acces a-t-elle ete soumise a plusieurs reprises par une personne ou un groupe d’individus agissant de concert?
  • Y a-t-il un historique ou une tendance constante de demandes d’acces via votre demandeur visant a harceler votre institution?
  • Notre requi together2night inscription?te d’acces ou la communication connexe contient-elle votre langage vulgaire, offensant, intimidant, menacant ou insultant qui n’est pas utile pour le traitement une exige?
  • Notre exige d’acces surcharge-t-elle ce institution dans la mesure ou elle menace ou diminue l’exercice legitime du droit d’acces via d’autres individus?
  • Le demandeur a-t-il intentionnellement presente les realises et circonstances de maniere inexacte dans ses interactions avec votre institution alors que vous traitez sa exige d’acces?

(claque de repondre « oui » a l’une ou l’autre des questions pourrait indiquer que la exige d’acces est vexatoire, entachee de mauvaise foi ou constitue autrement un abus du droit d’acces. N’oubliez jamais qu’une seule reponse affirmative n’est jamais une decision definitive d’apri?s laquelle une demande d’acces satisfait a toutes les criteres de l’article 6.1.

Chaque demande presentee au Commissariat en vue d’obtenir l’autorisation de ne pas apporter suite a Notre exige d’acces va i?tre prise en compte au regard de chaque cas, puis evaluee de maniere objective. Mes points de preuve fournis au Commissariat doivent etre clairs et convaincants.)

Caractere vexatoire

  • Caractere flou : Si une demande d’acces necessite des precisions, l’institution doit prendre des mesures raisonnables Afin de tenter d’obtenir des precisions avant de demander l’autorisation de ne point y donner suite. (6.1-0001)
  • Caractere repetitif : L’institution doit fournir la preuve que l’ensemble des informations demandes faisaient l’objet d’une demande d’acces precedente et qu’il n’y a eu pas de changement en circonstances influant sur la communication potentielle de ces informations. (6.1-0001), (6.1-0002)
  • 6.1-0003 : La Commissaire a conclu, selon la preponderance des probabilites, que la demande d’acces etait vexatoire parce que 11 demandes anterieures etaient redondantes ou essentiellement similaires, que toute l’information demandee se trouvait au sein d’ une demande anterieure et qu’aucune circonstance ne justifiait la presentation d’une requi?te en double.
  • Langage insultant : Cela convient d’evaluer si l’institution pourrait isoler le langage considere tel offensant et/ou reclamer au demandeur d’eviter d’utiliser un tel langage a l’avenir. (6.1-0001)
  • Securite des employes : L’institution devra demontrer que les preoccupations concernant la securite seront liees a la demande d’acces et a son traitement. (6.1-0001)

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