Decision pursuant to 6.1, 2026 OIC 18

Date of decision: February 10, 2026

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 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 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 October 9, 2025, the institution sought the Commissioner’s approval to decline to act on an access request it had received on July 27, 2025. The access request is the following:

1. Details: Provide all documents and communications (including drafts), containing the terms [name of a rare disease], or any close variation. This includes (but is not limited to) emails, Microsoft Teams messages, text messages, Word documents, PowerPoints, Excel sheets, meeting minutes/notes/invitations, briefing notes, memos, statistics, analysis, reports, assessments. Provide materials from the [institution] and from individuals [in a specific business area]. Timeframe: earliest records-present
2. Details: Provide all documents and communications (including drafts), containing the term [name of a rare disease], or any close variation. This includes (but is not limited to) emails, Microsoft Teams messages, text messages, Word documents, PowerPoints, Excel sheets, meeting minutes/notes/invitations, briefing notes, memos, statistics, analysis, reports, assessments. Provide materials from the [institution] and from individuals [in a specific business area]. Timeframe: earliest records-present
3. Details: Provide all documents and communications (including drafts), containing the terms [two medication names], or any close variation. This includes (but is not limited to) emails, Microsoft Teams messages, text messages, Word documents, PowerPoints, Excel sheets, meeting minutes/notes/invitations, briefing notes, memos, statistics, analysis, reports, assessments. Provide materials from the [institution] and from individuals [in a specific business area]. Timeframe: earliest records-present
4. Details: Provide all documents and communications (including drafts), containing the terms [two medication names], or any close variation. This includes (but is not limited to) emails, Microsoft Teams messages, text messages, Word documents, PowerPoints, Excel sheets, meeting minutes/notes/invitations, briefing notes, memos, statistics, analysis, reports, assessments. Provide materials from the [institution] and from individuals [in a specific business area]. Timeframe: earliest records-present
5. Details: Provide all documents and communications (including drafts) containing information about any deliberations, decisions, adjudication practices, research projects, directives, guidelines, or overarching principles pertaining to the coverage (or intent to cover) medications to treat rare diseases under the PSHCP. Medications to treat rare diseases include on-label and off label drugs (e.g. drugs that are Health Canada-approved for the rare disease, and drugs that are not Health-Canada approved to treat the rare disease). Documents or communications could include (but are not limited to) emails, Microsoft Teams messages, text messages, Word documents, PowerPoints, Excel sheets, meeting minutes/notes/invitations, briefing notes, memos, statistics, analysis, reports, assessments. Provide materials from the [institution] and from individuals [in a specific business area]. Timeframe: earliest records-present

The institution claimed that the access request is an abuse of the right of access.

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 is an abuse of the right of access because it is overly broad and would overburden it.

The institution explained that the request was divided into five parts, where the first four parts sought “all documents and communications (including drafts), etc.” containing various medical and pharmaceutical keywords or any close variation held by both the institution and from individuals of a specific business area, from the earliest records to the present. The fifth part of the request broadened the scope considerably, seeking all documents and communications relating to any deliberations, decisions, adjudication practices, research projects, directives, guidelines, or overarching principles concerning the coverage or intent to cover medications for rare diseases, including both on-label and off-label uses. This portion effectively encompassed any discussion or analysis undertaken by the institution regarding the treatment of rare-disease medications, regardless of condition or drug name. The institution further claimed that the breadth of the keywords, the use of open-ended terminology such as “rare diseases,” “off-label,” and “intent to cover”, and the timeframe effectively capture all internal and external communications concerning benefits adjudication, stakeholder correspondence, and internal deliberations since its inception. Furthermore, the broad scope of the request touches nearly every function of the organization.

The institution also explained that it conducted preliminary searches using the confirmed keywords provided in the request and through the clarification requests. These searches required coordination across multiple business areas and the involvement of more than 30 percent of the institution’s total staff complement to identify and review potential repositories. The effort consumed over 50 hours of staff time during the initial scoping phase alone and yielded approximately 30,000 pages of potentially responsive material.

Additionally, the institution is of the view that, while preliminary searches were conducted using specific keywords identified in the request, there is no reliable method to search for abstract concepts such as “intent to cover” or internal deliberations without manually reviewing every record generated by the institution and the specific business area mentioned in the request. These concepts are not indexed or captured through metadata or keyword tagging, and identifying them would therefore require a page-by-page review of all historical records. This, according to the institution, further contributes to the unmanageable scope and volume of the request.

The institution also explained that the records were located across several systems, including SharePoint, email servers, Microsoft Teams messages, network drives, and individual user folders. These repositories contain both active and archived data, including records created by staff who are no longer with the organization. According to the institution, retrieving, consolidating, and preparing these materials for review would require extensive manual searches, vendor-supported data extraction, and potentially the purchase of additional software licences, which would be cost-prohibitive given its size.

The institution stated that it is a small organization with 15 full-time employees, and has no dedicated ATIP office or specialized discovery tools to aid in the gathering and review of responsive and non-responsive records. The ATIP function is integrated into a communications role and is able to manage requests of modest size and scope. The institution further explained that, in the past 5 years, it has received 21 requests. The volume of records processed each year has remained modest: 208 pages in 2024–2025, 15 pages in 2023–2024, and none in 2022–2023. In recent years, the institution has processed at most 200 pages of records annually. According to the institution, the present request represents roughly 80 years of average ATI requests.

For the institution, dedicating the necessary resources to respond to this request will require the assistance of multiple employees, diverting resources from its core operational activities, including oversight, compliance, and support to plan members. To distribute the workload, additional employees from other areas would need to be reassigned and formally trained on ATIP processes, confidentiality requirements, and redaction standards, resulting in further delays and additional administrative burden.

Discussion

The Commissioner will now examine whether the institution has convinced her that the access request at issue is an abuse of the right of access. In their response to the institution’s application, the requester has claimed that the first four parts of their request are “extremely specific” and stated that it is unclear why the institution would not respond to them.

Subsection 6.1(1) states that, with the Commissioner’s written approval, an institution may decline to act on an access request. When she examines an application under subsection 6.1(1), she evaluates whether the access request as a whole is an abuse of the right of access, vexatious or made in bad faith. Therefore, in the present case, she shall not examine whether the first four parts of the request constitute an abuse of the right of access in isolation from the fifth part.

The requester also argued that the institution’s claim that their request “captures all internal and external communications since the organization’s inception” is implausible. The requester stated, for example, that it is incongruent with statistics on rare diseases: rare diseases only affect 3.5% to 5.9% of the global population. According to them, these statistics could be applied to the institution’s records, so their request would only capture 3.5% to 5.9% of the institution’s records.

The institution’s argument is, more precisely, that the access request captures “all internal and external communications concerning benefit adjudication, stakeholder correspondence, and internal deliberations since its inception.” The Commissioner agrees with the requester that this claim seems to be exaggerated. For example, she doubts that all benefit adjudications pertain to rare diseases. That said, it is unclear to her why the statistics proposed by the requester should apply to the institution’s records either. It is very possible that rare diseases are overrepresented in benefit adjudication.

Although neither party has convinced the Commissioner their methodology of determining volume is most accurate, she finds the institution’s evidence concerning its preliminary search for records and page count estimate to be reliable evidence of the volume of responsive records. The institution explained that it did a preliminary search for records using the “confirmed keywords” (i.e. the names of the specific rare diseases and medications mentioned under points 1 to 4, and the terms “rare disease,” “off-label,” and “orphan drug” related to point 5), and that this search yielded 30,000 pages of records. The Commissioner finds that it is plausible that 30,000 pages of records would be responsive to the request, given the number of rare diseases and that the request covers a period of about 20 years.

In the present circumstances, the Commissioner finds that responding to the request would overburden the institution. Overburdening is a relative concept that must be judged on the basis of the circumstances faced by a particular institution. A small institution with a limited capacity to respond to access requests may be overburdened in circumstances that would not otherwise overburden a large institution. In this instance, the institution has explained that it is composed of 15 full-time employees. To date, it has, at most, processed approximately 200 pages of records in one year. While under resourcing an ATIP office does not excuse an institution’s lack of capacity, that is not what is happening here. The Commissioner accepts that given the institution’s size and limited capacity to process access requests, this request would overburden it.

Turning to the breadth of the request, the Commissioner finds that the access request, and more specifically the fifth part, is overly broad, and constitutes an abuse of the right of access. This part of the request seeks all documents and communications relating to any deliberations, decisions, adjudication practices, research projects, directives, guidelines, or overarching principles concerning the coverage or intent to cover medications for rare diseases, including both on-label and off-label uses.

While the Commissioner does not find that acting on the request would require the institution to use search terms such as “internal deliberation”, “decision”, “research project”, etc., as a search for "rare diseases" would seem likely to return all responsive records, clearly a search for all records relating to "rare diseases" over the last 20 years is, in its own right, excessively broad in the context of this request. Documents and communications relating to rare diseases would be found throughout the institution as they would touch nearly every function of the organization. Extensive efforts would be necessary to undertake a thorough search of such a broad subject matter. The Commissioner finds that considering the breadth of the request, processing the request would unreasonably interfere with the institution's operations.

The Commissioner concludes that the institution has demonstrated that the access request at issue amounts to an abuse of the right of access.

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 argued that it made every reasonable effort to assist the requester through two email communications. In the first email, the institution proposed narrowing the request by reducing the timeframe, focusing on specific rare diseases and medications such as those that were mentioned in points 1 to 4, or by identifying specific appeal cases. The institution also provided context about its operations and publicly available information to assist the requester in narrowing the scope of their request, including details on the prior authorization program, plan exclusions for off-label drug use, and the plan administrator’s role in adjudication.

In response, the requester declined all the institution’s suggestions. The Commissioner finds that these suggestions were good advice to help the requester make a refined, less burdensome request. Requesters should be mindful that an institution’s resources are not unlimited and should work with the institution to explore ways to overcome the problems identified by the institution accordingly.

In the second email, the institution stated again that the request was too broad and invited the requester to provide a list of specific diseases or medications to allow a focused search.

In response, the requester stated that they are seeking records containing the term “rare diseases” and that finding these records should not require searching for specific rare diseases. The requester added the following:

“Please let me know if you are still unable to complete the ATIP in light of this clarification. I would be happy to provide a specific list of diseases if this is the only way to complete the ATIP.”

The institution did not reply to the requester’s email.

The requester argued that the institution did not satisfy its duty to assist given that they offered to provide a list of diseases “if this is the only way to complete” the request, and the institution did not follow up.

As set out above, the duty to assist does not require institutions to take particular steps in all cases and what will constitute "every reasonable effort" depends on the facts of the case. In this instance, the Commissioner finds that the institution reasonably determined that the requester made their intention clear that they were expecting the institution use the search term “rare diseases”.

The Commissioner finds that the institution has gone as far as is practical to assist the requester. The requester had the opportunity to refine their request to overcome the broadness of part 5 and make it less burdensome. Given that the requester already asked for specific diseases and medication in parts 1 to 4, it is reasonable to assume they are seeking records containing any other rare disease in part 5.

Furthermore, it is unclear that providing a list would have overcome all the issues identified by the institution in any event. The request would still cover all types of documents over a 20-year period and touch nearly every function of the organization, and the institution would still likely have to manually review its older records.

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.

Therefore, the application is granted.