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

INTERPRETATION

Section 6.1 of 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.

An institution may ask the Information Commissioner for written approval to decline to act on an access request under the Access to Information Act (the Act) in certain circumstances.

This document offers guidance on the interpretation of section 6.1.

Considerations for seeking approval

To seek the Commissioner’s approval to decline to act on an access request, institutions must be of the view that the request falls under one of the circumstances listed in subsection 6.1(1). Generally, these circumstances are met because the request, when analyzed in context, is somehow contrary to the principles and objectives of the Act.

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 Commissioner will only grant approval to decline an access request when an institution has made a compelling case that the request falls under one of the terms listed in section 6.1.

In addition, institutions should only seek the 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 or narrow its scope.

Interpreting “vexatious”, “made in bad faith”, and “abuse of the right of access”

The terms “vexatious”, “made in bad faith”, or “abuse of the right of access” are not defined in the Act. They are considered to be interchangeable or overlapping. This means it is possible that a single access request may, based on the same set of contextual factors, fit under any or all of the terms listed in section 6.1.

General definitions

Note: there is no rigid test or definition for these terms. This is because the question of whether an access request is ultimately vexations, made in bad faith, or abuse of the right of access depends upon the circumstances surrounding that request.

These definitions are provided to give some general parameters to consider.

Vexatiousness is usually understood to mean with intent to annoy, harass, embarrass, or cause discomfort. However, in the context of an application to decline to act on an access request, vexatiousness must rise above annoyance or inconvenience. 

Bad faith is usually understood to be the opposite of good faith. “Bad faith” generally implies a design to mislead or deceive another, not prompted by an honest mistake as to one’s rights, but by some interested or sinister motive. “Bad faith” is not simply bad judgement or negligence, but rather implies the conscious doing of a wrong because of a dishonest purpose.

Abuse is usually understood to mean a misuse or improper use.

The OIC may consider the following factors when deciding if an access request is vexatious, made in bad faith, or otherwise an abuse of the right of access:

  • The nature and scope of the access request
  • The purpose of the access request
  • The wording of the access request
  • The timing of the access request to other possibly related events
  • The volume of similar access requests by the same requester or connected requesters

When deciding whether to send an application to the Information Commissioner to decline to act on an access request, some questions you may wish to ask yourself first are:

  • Is the primary purpose of the access request contrary to the purpose of the Act? Is there a motivation behind the request other than obtaining access to information?
  • Has the access request been repeatedly submitted by one individual or a group of individuals working in concert with each other?
  • Is there a history or an ongoing pattern of access requests by this requester designed to harass your institution?
  • Does the access request or related communication contain vulgar, offensive, intimidating, threatening, or insulting language that is not necessary in order for the request to be processed?
  • Is the access request overburdening your institution to the extent that it is threatening or diminishing the legitimate exercise of the right of access by others?
  • Has the requester intentionally misrepresented facts and circumstances in its dealings with your institution as you process their access request?

Answering yes to any of these questions might indicate the access request is vexatious, made in bad faith, or is otherwise an abuse of the right of access. Bear in mind that just one yes answer is not a definitive determination that an access request meets the criteria under section 6.1. Each application made to the OIC to decline to act on an access request will be considered on a case-by-case basis and objectively evaluated. The evidence provided to the OIC must be clear and compelling.

The following types of applications to decline to act on an access request will likely not be approved, absent other, compelling circumstances:

  • Applications that are for the purpose of punishing the requester.
  • Applications where the only reason the institution does not wish to act on the access request is because the release of the information may be uncomfortable for or embarrassing to the institution.

The Office of the Information Commissioner will continue to update and add to this interpretation guidance as it receives and considers applications to decline to act on access requests.

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