Commissioner’s approval to decline to act on an access request

Under subsection 6.1(1) of the Access to Information Act, the head of a government institution may seek the Information Commissioner’s written approval to decline to act on an access request if, in the head of the institution’s opinion, the request is one or more of the following:

• vexatious
• made in bad faith
• an abuse of the right to make a request for access to records.

Institutions may not decline to act on access requests for the sole reason that the requested information was already proactively published under Part 2 of the Act (subsection 6.1(1.1)).

The institution bears the burden of establishing that the access request meets one or more of the requirements of subsection 6.1(1).

If the institution establishes that one or more of the requirements of subsection 6.1(1) apply, the Commissioner must exercise her discretionary power to either grant or refuse the application.

In exercising her discretion, the Commissioner considers all relevant factors and circumstances, including the following:

• the quasi-constitutional nature of the right of access
• the public interest in the records sought
• whether the institution met its obligations under subsection 4(2.1) to make every reasonable effort to assist a requester in connection with the access request.

Whether the access request meets one or more of the requirements set out in subsection 6.1(1) rests on an objective assessment of the relevant facts and depends on the particular circumstances surrounding the request. The Commissioner, when satisfied that one or more of the requirements set out in subsection 6.1(1) are met, will decide, upon balancing all relevant factors and circumstances, whether to approve the institution’s application to decline to act on the request.

What is a vexatious access request?

The term “vexatious” carries the same meaning as it does in everyday usage. In the context of access to information law, vexatious access requests are generally those made primarily to embarrass, harass or cause annoyance or trouble. Such requests must be more than merely an inconvenience to the institution.

Even seemingly legitimate access requests can be vexatious if they are made for improper purposes, such as inflicting damage or seeking retribution.

To determine if a request is vexatious or not, the Commissioner can also consider, among other things, the history of the request—in terms of the dealings between the requester and the institution—and the number, scope and pattern of previous requests. 

When would an access request be made in bad faith?

Bad faith is not simply bad judgment or negligence, but rather involves conscious wrongdoing, a dishonest purpose or both. The Commissioner considers an access request to be made in bad faith when it is made primarily for an improper or dishonest motive—not to obtain information—or with an intention to mislead or deceive.

Bad faith is difficult to demonstrate, so institutions must provide clear evidence. This can include evidence upon which it can be inferred from all of the circumstances that the request was made in bad faith.

What is an abuse of the right to make a request to access records?

The Act provides requesters with a right to access information under a government institution’s control—a right that should not be abused.

The Commissioner considers an abuse to have occurred when an access request exceeds the limits of the legitimate exercise of that right. When determining whether a request is abusive, the Commissioner focusses on the scope, nature and cumulative effect of the request, including the following:

• whether the request is repetitive or overly broad
• whether the request was made with a purpose other than obtaining documents or information
• whether acting on the request would overburden the institution and/or obstruct the institution’s ability to respond to other access requests (and, therefore, affect other requesters’ right of access) or both.

She may also consider the institution’s efforts, if any, to help the requester determine what information they want and/or narrow the scope of their request. The Commissioner may also consider the requester’s responses to such efforts, including the extent to which they have demonstrated a willingness to work with the institution.

Points for institutions to consider before applying

When deciding whether to apply to the Commissioner for approval to decline to act on an access request, institutions must consider the following:

• Applications are a serious matter since, in a particular case, they could have the effect of removing a person’s right to seek access to information.
• Institutions must have sound reasons for submitting an application.
• Institutions must provide any supporting facts, evidence, and arguments to support their application.
• Institutions should make every reasonable effort to help the requester with the request (as per their responsibilities under subsection 4(2.1)).

Obligation to assist the requester

Subsection 4(2.1) sets out a general duty for institutions to assist requesters. The scope of this duty is broad—requiring institutions to make “every reasonable effort” to assist requesters with their access requests—and extends as far as it would be reasonable for institutions to provide assistance.

The duty to assist does not require institutions to take particular steps in all cases, but carrying out this obligation may include actions such as helping a requester clarify their access request to make it possible for the institution to identify responsive records and/or helping a requester narrow the scope of a request to facilitate a more timely response. What will constitute “every reasonable effort” to assist the requester with their request in any given situation will depend on the facts and circumstances, and must be assessed case by case.

Questions

If you have any questions about the process for applications seeking approval to decline to act on an access request, contact the OIC at permission@oic-ci.gc.ca.

Do you need an accommodation to participate in this process?

To request accommodations for a disability in order to participate in this process, or to speak to someone about needs related to one of the grounds of discrimination under the Canadian Human Rights Act, contact the OIC at permission@oic-ci.gc.ca.