PROCEDURE: Seeking the Information Commissioner’s approval to decline to act on an access request
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:
- 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 guidance document explains the process associated with seeking such approval.
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 person submitting the access request is using the Act in way that is contrary to its principles and objectives.
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 sound written case for approval.
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.
- For the Information Commissioner’s interpretation of the provisions of section 6.1, please see Interpretation: Seeking the Information Commissioner’s approval to decline to act on an access request.
Process for seeking approval
Note: Only access requests made on or after June 21, 2019 may be declined.
The institution must send an email to the Office of the Information Commissioner (OIC) at: email@example.com, 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:
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.
The OIC expects that the submissions in support of the application will be made in the official language of the 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.
If institutions wish to share personal information in the application, they should first seek legal advice to ensure the disclosure is in compliance with the Privacy Act and Treasury Board of Canada Secretariat’s guidance on consistent use.
The OIC may decline an application when it does not contain this information and enough detail such that the Commissioner could make an informed decision.
Institutions have one opportunity to explain why the Commissioner should or should not grant approval to decline to act on the access request. The OIC will not accept any further reasons or information on the matter, unless it asks for it.
2. NOTIFY THE REQUESTER
TIMELINES FOR INSTITUTIONS
Institutions can 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.
The OIC will not accept applications to decline to act on an access request submitted 30 days or more after the institution has received the request or after a valid time extension has expired.
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 respond to 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 OIC and the institution within 10 business days with information about why the institution should respond to the access request.
3. COMMISSIONER’S DECISION
Based on the information received from both the institution and the requester, the Commissioner will decide whether to approve the application. She will upload a copy of her decision to the Conversation.
TIMELINES FOR THE INFORMATION COMMISSIONER
The Commissioner’s goal is to complete an application to decline to act on an access request within 20 business days.
4. NEXT STEPS
Once the institution receives the Commissioner’s decision, it must do the following:
- If the Commissioner approves the application, 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, because the access request is deemed not to have been made.
- 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).