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Decision pursuant to 6.1, 2025 OIC 47

Date of decision: July 21, 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.

The Commissioner finds that the institution did not establish that the access request is vexatious.

The application is denied.

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

“All incoming and outgoing emails, Teams messages, and iPhone iMessages sent and received by [three employees of the ATIP office], from March 23 to March 25, 2025 (inclusive) regardless of subject matter. Please include attachments. NOTE: As per the Senate’s amendments to Bill C-58, an ATIA requester is not required to provide a specific subject matter when making an ATIA request.”

According to the institution, the access request is vexatious.

Is the access request vexatious?

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. 

The institution argued that the access request is vexatious because of its purposes, namely:

  • “to seek retribution”, “to render information public as retribution”, and “to bully” (i.e., to cause some kind of harm); and,
  • “to bully the institution into releasing information” and “to circumvent an investigation” (i.e., to obtain unredacted records from another access request by some other means than the official complaint process).

According to the institution, these purposes are evidenced by the following factors:

  • the Requester’s actions leading up to and following the making of their access request;
  • the content of the access request; and,
  • the timing of the access request.

Actions leading up to and following the making of the access request

The institution explained that it received a first access request from the requester on October 11, 2024, seeking records related to a Truth and Reconciliation event. The institution provided a first set of responsive records to the requester on March 21, 2025 and withheld from disclosure some of the information under various exemptions including section 16.5 (disclosures under the Public Servants Disclosure Protection Act) and subsection 19(1) (personal information).

On March 23, 2025, the requester sent an email to the institution’s ATIP office to object to the application of section 16.5 and subsection 19(1) and requested that the release package be reissued. Specifically, the requester said:

“[…] I am giving you until Tuesday, March 25, 2025 at 4pm EST to confirm [the institution]’s intention to release the information which was improperly redacted pursuant to section 16.5 and 19 of the ATIA.

Should I not hear back by that time, further action will be taken.”

The institution explained that it did not reissue the package and that, on March 26, 2025, it received the access request at issue in the present application.

On March 27, 2025, the institution contacted the requester by telephone to attempt to narrow the scope of the present access request. During the conversation, the institution asked the requester whether they were seeking information related to a specific subject. The requester was advised that narrowing the scope of their request would allow the institution to expedite the search and review of any relevant records found. The requester refused to narrow the scope of the present request and reiterated their desire to obtain all communication records of the named individuals, regardless of subject.

Finally, the institution explained that it provided a second set of responsive records for the first request on April 1, 2025, and that some of these records were withheld pursuant to section 16.5, subsection 19(1) and paragraph 21(1)(b). On April 2, 2025, the requester wrote to the institution regarding the application of these exemptions and stated:

“I will also be giving a heads-up to the Public Sector Integrity Commissioner that [the institution] is using section 16.5 to wrongly shield information that is very clearly not related to the making of a PSDPA complaint.

I again highly recommend you release the above information.”

The institution further stated that, on April 4, 2025, the requester filed a complaint with the Public Sector Integrity Commissioner.

In sum, the institution identified three actions taken by the requester, which support its view that the purposes of the request are vexatious:

  • the sending of the March 23 email in which they stated that “further action will be taken” (the “ultimatum”);
  • the refusal to specify a subject matter for the present request; and,
  • the sending of the April 2 email in which the requester stated that they would give a heads-up to the Public Sector Integrity Commissioner.

The institution contends that, in light of the requester’s ultimatum and subsequent refusal to narrow the scope of the present request, its purpose is not to obtain any specific information. Instead, it is an attempt by the requester to circumvent an Office of the Information Commissioner (OIC) complaint investigation and to seek retribution against the institution for failing to respond to their first request in a manner satisfactory to them.

The institution further argued that, in the April 2 email, the requester threatened to complain to the Public Sector Integrity Commissioner about the institution’s application of section 16.5. The institution submits that this reveals a pattern of vexatious behaviour.

Content of the access request

Additionally, the institution argued that the vexatious purposes are demonstrated by the content of the access request. The scope of the request does not appear to be at issue. Rather, it is the nature of the records sought (i.e. emails of three ATIP office employees). The institution seems to suggest that the fact that the access request at issue seeks emails from three employees that were responsible for the application of the exemptions in the context of the first request, with which the requester disagrees, is a sign of retribution. The retribution mentioned by the institution is not that of a burden for the institution; rather the retribution appears to be linked to making the information public.

Timing of the access request

The institution also argued that the timing of the present access request demonstrates the vexatious purpose as it was made the day after the “ultimatum” deadline ended.

Discussion

The Commissioner will now examine whether the institution has convinced her that the main purposes of the request are to cause some kind of harm (to seek retribution, bully, etc.) and to obtain unredacted records from another access request by some other means than the OIC’s complaint process.

Actions leading up to and following the making of the access request

According to the institution, the first event that demonstrates a vexatious purpose is the requester’s March 23 email indicating that “further action will be taken.” According to the requester, the expression “further action will be taken” is benign language found in all formal legal demand letters and they used it in this instance to indicate that they would file a complaint with the OIC. The requester further indicated that they filed their complaint with the OIC the day after their deadline had passed, that is, on the same day they made the access request at issue (March 26, 2025).

To determine the meaning of an expression like this one, the Commissioner finds it best to look at it in its context, that is, to look at the entire email. In the email in question, the requester started by providing elaborate reasons why they believe that the exemptions (section 16.5 and subsection 19(1)) were incorrectly applied. Then, they provided a deadline to release the records that were, according to them, improperly redacted and finally added that if they do not hear back from the institution by that deadline, “further action will be taken.”

Upon review of the email, the Commissioner finds the requester’s explanation more convincing than the institution’s interpretation, as it is more consistent with the reasoned approach taken at the beginning of the email. She finds that when they wrote that “further action will be taken,” the requester likely meant that they would file an OIC complaint to challenge the application of the exemptions.

The institution’s interpretation, although not impossible, appears to the Commissioner less plausible. The institution suggests that, after presenting elaborate reasons why some exemptions do not apply, the requester indicated that “further action will be taken” which meant that they would seek retribution by submitting an access request to bully the institution. This appears to her inconsistent with the reasoned approach taken at the beginning of the email.

Another event mentioned by the institution is the sending of the second email, in which the requester indicated that they would inform the Public Sector Integrity Commissioner of the institution’s use of section 16.5 to wrongly shield information. This email demonstrates, according to the institution, a pattern of vexatious behaviour.

The Commissioner disagrees with the institution. A pattern of vexatious behaviour is not established simply because an individual uses the various means at their disposal to assert their rights.

The last event mentioned by the institution is the telephone conversation in which the requester refused to specify a subject matter for their access request. According to the institution, this indicates that the requester does not have a real interest in obtaining the information at issue.

In their submission, the requester indicated that they are interested in obtaining the deliberation of the institution’s ATIP office in relation to their offer to avoid an OIC complaint.

The Commissioner finds the requester’s position plausible. The access request is limited to the three employees that were likely to deliberate about the requester’s offer and to the period of time that was given to them to deliberate. This confirms that the requester has an interest in obtaining information related to the deliberation in question.

While there may be instances where a requester’s refusal to identify a specific subject matter may be an indicator that the purpose of the request is to embarrass, harass or cause annoyance or trouble or serve other improper purposes, such as inflicting damage or seeking retribution, the Commissioner does not find that this is the case in this instance. She accepts that the requester has not specified a subject matter as the emails that are not specifically about the deliberation are also of interest to the extent that they may provide contextual information about that deliberation. For example, by requesting all the emails of a specific employee, the requester could find out that they were not working on these days or that they were very busy finalizing another project, which could explain why they have not deliberated about their offer. That type of information would likely not be available to them if they had limited their access request to emails pertaining to their offer to avoid an OIC complaint.

Content of the access request

In addition to the actions leading up to and following the making of the access request, the institution argued that the content of the access request demonstrates the vexatious purpose. More specifically, the institution suggests that the fact that the access request seeks the emails of those employees who were responsible for the application of the exemptions is a sign that its purpose is to seek retribution. As mentioned above, the retribution alleged by the institution is not that of a burden for the institution; rather the retribution appears to be linked to making the information public.

The Commissioner does not find this argument plausible. First, no evidence has been put forward to suggest that the requester has ever had the intention to make the information public.

Second, it is not exactly clear why the institution thinks that making this information public could be seen as retribution. The institution might suppose that the requester is attempting to obtain information that would be embarrassing for the three named employees. The retribution in question would then come from the embarrassment that publishing the information would cause.

The Commissioner finds that it is unlikely that the purpose of the access request is to obtain embarrassing information, given that it is covering three days only.

Rather, she finds that the content of the access request confirms the requester’s position, namely, that the access request aims at obtaining information pertaining to their offer to avoid an OIC complaint. Indeed, as previously mentioned, the access request covers exactly the period that the requester gave to the institution to deliberate about their offer and involved the three employees most likely to be involved in the deliberation.

Timing of the access request

Finally, according to the institution, the timing of the access request gives insight into its purpose: the access request was made the day after the “ultimatum” ended, which suggests that its purpose is to seek retribution. The Commissioner agrees with the institution that, in certain circumstances, this could be an indicator that the purpose of the request is to seek retribution. That said, the timing of the access request also supports the requester’s position, namely, that they made the access request to obtain the institution’s deliberation about their offer to avoid an OIC complaint. The access request was indeed made the day after the deadline to consider their offer had passed.

In any event, the Commissioner finds that the timing alone is not sufficient to support the institution’s position that the main purposes of the access request are to cause some kind of harm (to seek retribution, bully, etc.) and to obtain unredacted records from another access request by some other means than the official complaint process.

Conclusion

The Commissioner concludes that the institution has not demonstrated that the access request is vexatious.

As a final remark, the Commissioner wants to address the question of a possible conflict of interest. The requester has mentioned in their representations that the employee who signed the application was also the subject of the access request and that, as such, the employee was in a conflict of interest. This, according to the requester, undermines the credibility of the application.

A conflict of interest is generally understood as a situation, whether real, apparent or potential, in which an employee has private interests and/or outside activities that could improperly influence the performance of the employee’s official duties and responsibilities or in which the employee uses their employment for personal gain. In this instance, the Commissioner has seen no evidence that the individual who signed the application was acting in a manner contrary to their official employment duties.

In general, the employees working within the ATIP unit of an institution will have a professional interest in the processing of an access request. The mere fact that an institution makes use of this application process and that the application is signed by an employee within the ATIP unit does not, in isolation, evidence a conflict of interest.

The 6.1 application process is available to institutions under prescribed circumstances. An institution must request the Commissioner’s permission to decline to act on an access request. This serves as a safeguard against employees of an institution acting in a manner that furthers their personal interests over their professional duties.

Decision

The institution has not established that the access request met one or more of the requirements of subsection 6.1(1).

Therefore, the application is denied.

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