PROCEDURE: Seeking the Information Commissioner’s approval to decline to act on an access request

Section 6.1 of the Access to Information Act (the Act) provides that 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 opinion of the head of the institution, the request is:

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

The head of a government institution cannot decline to act on a person’s access request for a record for the sole reason that the information contained in it has been proactively published under Part 2 of the Act.

This guidance document describes the process and timelines for seeking such approval. The Commissioner may vary the process and timelines depending on the context and circumstances of a particular case.

Considerations for seeking approval

To seek the Information Commissioner’s approval to decline to act on an access request, institutions must be of the view that the request falls under one or more of the circumstances listed in subsection 6.1(1).

Seeking such approval could remove a requester’s express right of access related to the request in question. 

Given the quasi-constitutional nature of the right of access, the Information Commissioner will only grant approval to decline to act on an access request if the application is supported by clear and compelling evidence that is sufficiently detailed in the application.

In addition, institutions should only seek the Information Commissioner’s approval to decline to act on an access request after having made every reasonable effort to help the requester with the request, as is required under the duty to assist (subsection 4(2.1)). This includes helping requesters clarify their access request request to narrow its scope and/ or to enable the institution to identify the record(s).

Process for seeking approval

Note: Institutions may only decline to act on access requests made on or after June 21, 2019.

1. APPLICATION

The institution must send an email to the Office of the Information Commissioner (OIC) at: permission@oic-ci.gc.ca, stating that it would like to submit an application for approval to decline to act on an access request. The OIC will, within one business day of receipt of the institution’s email, open a Conversation via Canada Post epost Connect, using the email address provided by the institution, which will generate an email to the institution with instructions on how to upload the application into the Conversation. The institution will have up to 2 business days to upload its application.

The epost Connect Participant Guide can be found here:
https://www.canadapost.ca/cpc/assets/cpc/uploads/files/postal-services/epost-connect-participant-guide-en.pdf 

The application must include the following information: 

• a copy of the access request at issue;
• the requester’s name and contact information;
• the date the institution received the access request;
• the institution’s access request file number;
• confirmation that the institution gave written notice to the requester at the same time as they communicated with the Information Commissioner to seek approval to decline to act on the access request, as required by subsection 6.1(1.3) of the Act;
• all submissions and any supporting evidence the institution wishes to rely on to demonstrate that the access request meets the relevant criteria set out in subsection 6.1(1) of the Act.
• submissions and any supporting evidence that demonstrate the institution’s efforts to fulfill its duty to assist obligations in relation to the access request.

Institutions have one opportunity to explain why the Information Commissioner should grant approval to decline to act on the access request. The OIC will not accept any further reasons or information on the matter, unless the Information Commissioner deems it necessary. 

The Information Commissioner may refuse an application that is incomplete or does not contain enough information for her to decide whether she approves the request to decline to act on the access request.

The OIC expects that the submissions in support of the application will be made in the official language of the access request. This will ensure a fair and efficient process when submissions have to be shared with the requester in order to give them an opportunity to respond.

Institutions are responsible for ensuring compliance with the Privacy Act when disclosing personal information to the Information Commissioner in an application seeking the Commissioner’s approval to decline to act on a request.

2. NOTIFY THE REQUESTER

TIMELINES FOR INSTITUTIONS

Institutions must submit an application for approval to decline to act on an access request within the 30-day period to initially respond to the request, or within a validly taken extension period. Applications submitted after these periods will not be accepted.

If the Information Commissioner determines that the application merits consideration for approval, she will invite the requester to join the epost Connect Conversation.* The requester will then have up to 10 business days to submit reply submissions to the Conversation, detailing why they think that the institution should not decline to act on the access request.

* If the requester requires an alternate process to that offered through epost Connect, arrangements will be made to accommodate.

TIMELINES FOR REQUESTERS

The requester must reply to the Information Commissioner and to the institution within 10 business days with information about why the institution should not decline to act on the access request.

3. INFORMATION COMMISSIONER’S DECISION

Based on the information received from both the institution and the requester, the Information Commissioner will decide whether to approve the request to decline to act on the access request. Her decision will be uploaded to the Conversation. 

TIMELINES FOR THE INFORMATION COMMISSIONER

The Information Commissioner’s goal is to complete the processing of an application to decline to act on an access request within 20 business days.

4. NEXT STEPS

Once the institution receives the Information Commissioner’s decision, it must do the following:

• If the Information Commissioner approves the application and gives her approval, the institution must provide the requester with written notice of its decision to decline to act upon the access request and the reasons for doing so, as required by subsection 6.1(2) of the Act. It is the OIC’s position that the institution should also return the requester’s $5 fee,
• If the Information Commissioner refuses to give her approval, the institution must give written notice to the requester of the refusal and of the date on which the running of the time period to respond to the access request resumes. The following example demonstrates how the time periods work: 
  • June 1: the institution receives the access request 
  • June 11: the institution communicates with the Commissioner to seek permission to decline to act on the access request 
  • June 22: The institution receives the Commissioner’s decision that it may not decline to act on the access request
  • June 23: This is the date on which the time period resumes
  • July 12: This is the date on which a response must be provided under section 7 (unless an extension is taken or the access request is transferred).