Decision pursuant to 6.1, 2025 OIC 63

Date of decision: November 10, 2025

Summary

An institution submitted an application seeking the Information Commissioner’s approval to decline to act on an access request under subsection 6.1(1) of the Access to Information Act. In the institution’s opinion, the access request is vexatious and an abuse of the right of access.

The Commissioner finds that the institution established that the access request at issue is an abuse of the right of access. Moreover, the circumstances warrant that she provides her approval to the institution to decline to act on this access request.

The application is granted.

Application 

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 under 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 will consider all relevant factors and circumstances, including:

• 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 their request.

Access request at issue

On July 17, 2025, the institution sought the Commissioner’s approval to decline to act on an access request it had received on June 17, 2025. The access request is the following:

A-2025-00621: “Please provide to me all directives, directions, policies, instructions, and advice with regards to the release of information related to [two military operations]. This includes all instructions regarding the release, internal cancellations, or combining of A-2022-02030, A-2023-01037, A-2022-02031, A-2023-01036, A-2022-02032, A-2024-00874, A-2023-02165, as well as all other requests for the production of emails and/or processing files related to the release of these operations. This is a duplicate of request of A-2024-02051, made 1/24/2025.

Dates: 08-August-2021 to 28-January-2025”

The institution claims that the access request is vexatious and an abuse of the right of access.

According to the institution, the request at issue must be considered in the context of numerous related access requests. The relevant requests started in February 2022 with three requests for records related to certain military operations (A-2022-02030, A-2022-02031 and A-2022-02032) and culminated in an additional 36 access requests related to the processing of the initial three requests. The requester did not dispute the factual accuracy of the history of these related requests. The institution explained that after making the initial three requests, the requester was informed that they had missed the deadline to complain to the Office of Information Commissioner (OIC) about the institution’s lack of response within the statutory timeline and consequently, the requester made two new requests, duplicative of A-2022-02030 and A-2022-02031. In the intervening years, the requester went on to make two more duplicative requests, one which was a duplicate of A-2022-02032 and the other which was effectively a second duplicate of A-2022-02031.

Regarding the requests related to the processing of the initial three requests (and/or subsequent duplicative requests), these requests varied in scope and breadth. Many of the requests targeted communications to and from certain individuals working at the institution, both in offices of primary interest and within the institution’s Directorate Access to Information and Privacy.

Over this period, the requester availed themselves of the complaint mechanism under the Act. Of relevance, the requester filed complaints regarding the institution’s search for records in response to A-2023-01037 (a duplicate of A-2022-02030) and A-2023-01036 (a duplicate of A-2022-02031). In both instances, the OIC concluded that the institution had performed a reasonable search and therefore, the complaints were not well founded.

According to the institution, the purpose of the requests related to the processing of the initial requests and their duplicates, was to find proof that the institution has destroyed or improperly withheld records concerning the military operations at issue. The requester did not dispute this assertion, and that this is an operative purpose behind these requests is generally borne out in the requester’s submissions.

Is the access request an abuse of the right of access?

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, she focuses 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.

The Commissioner 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. She 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.

The institution argued that the access request at issue is an abuse of the right of access because it is duplicative and borne from dissatisfaction with its responses to other requests made under the Act.

Discussion

The institution and the requester both agree that the access request at issue is a duplicate of an earlier access request, A-2024-02051.

The institution and the requester also agree on the purpose behind the duplicative request, namely to regain the requester’s right to complain about the institution’s delay under the new file number.

Where the institution’s and the requester’s positions diverge is as to whether, in the context of this request, the duplicative request constitutes an abuse of the right of access.

In previous decisions, the Commissioner found that a request is vexatious or an abuse of the right to access records when it is repetitive, that is, when no new records are being sought (2020 OIC 17, 2021 OIC 30, 2024 OIC 63).

In some cases, a change in circumstances or loss of records already obtained may create a situation where a repetitive request is warranted.

In the present instance, the requester explained that the complaint window had expired, and that on a previous occasion, it had been suggested to them by the OIC that the appropriate recourse in such a situation was to resubmit the same request.

Under the current circumstances, the Commissioner is not convinced that the requester’s explanation is sufficient to justify their duplicative request. Regardless of any suggestions the requester may have received from OIC staff, the requester remains responsible for the management of their access request. In this instance, the requester is clearly an experienced user of the access to information system and should have been alive to the deadline by which they were required to submit a complaint with the OIC, having previously submitted numerous other complaints.

By making a duplicative request for the purpose of regaining the right to complain, the requester was attempting to circumvent the time limit imposed by the Act to make a complaint. There are good reasons why the Act imposes a time limit to file a complaint. For example, this time limit helps to ensure complaints are investigated in a timely manner while reliable evidence is available. Furthermore, the finality imparted by the time limit allows parties to move forward without indefinite exposure to legal risk. As such, requesters must exercise their right of complaint consistent with the requirements of the Act or otherwise risk losing the opportunity to complain.

In addition to the above, the Commissioner further finds that the pattern of behaviour of the requester supports a finding that the request at issue constitutes an abuse of the right of access. Looking at the requester’s behaviour, it becomes clear that they are using records received from one request to identify new issues for making further requests. In this case, the request at issue in this 6.1 application seeks, in part, the processing file of A-2024-00874, which is itself seeking the processing file of the three initial requests. This creates a cycle of self-perpetuating requests which, while not in and of itself enough to demonstrate the request at issue is an abuse, is an indicator of an abusive request.

Considering the foregoing, the Commissioner finds that the request at issue amounts to an abuse of the right of access.

In light of the Commissioner’s conclusion, it is unnecessary for her to further consider whether the request is also vexatious.

Do the circumstances warrant that the Commissioner provides her approval to decline to act on the access request?

Given that the institution established that one of the requirements of subsection 6.1(1) applies to the access request, the Commissioner must now exercise her discretionary power to either grant or refuse the application.

In exercising her discretion, she has considered all relevant factors and circumstances, including the following.

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.

The institution indicated that it contacted the requester by phone concerning the access request at issue to explain that making duplicate requests will not generate any additional records.

The institution further relied on the steps taken in the course of processing the related requests as demonstrating its attempts to assist the requester. These steps included investigating the requester’s allegations of destruction of records, rescoping and reformulating requests, and seeking clarification in regards to duplicate requests.

Based on the above, the Commissioner concludes that the institution established that it had met its duty to assist the requester.

Decision

The institution has established that the access request at issue meets the requirements of subsection 6.1(1) as it is an abuse of the right of access.

The circumstances warrant an exercise of the Commissioner’s discretionary power to authorize the institution to decline to act on this access request.

The institution further requested limitations be put on the requester’s future access requests. In the circumstances, the Commissioner declines to provide such relief.

Therefore, the application is granted.