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Section 43 - Power to Authorize a Public Body to Disregard a Request

Last updated on June 7, 2022

Overview

Section 43 allows the head of a public body to ask the commissioner to authorize the public body to disregard a request made under section 5 or section 29.  

Section Reference

Section 43 of the Freedom of Information and Protection of Privacy Act

If the head of a public body asks, the commissioner may authorize the public body to disregard a request under section 5 or 29, including because

(a) the request is frivolous or vexatious. 

(b) the request is for a record that has been disclosed to the applicant or that is accessible by the applicant from another source, or  

(c) responding to the request would unreasonably interfere with the operations of the public body because the request  

(i) is excessively broad, or  

(ii) is repetitious or systematic    ​

Summary

Under this section, the head of a public body may ask the commissioner for permission to disregard a request for access to information made under section 5 or a request for correction of personal information made under section 29.  

This section grants the commissioner the power to authorize a public body to disregard a request made under section 5 or section 29.  This includes, but is not limited to, criteria specified in the Act. The Commissioner has considerable latitude and discretion when determining whether to authorize a public body to disregard a request, which may include disregarding multiple requests, disregarding anticipated future requests or placing limitations on the number or frequency of applicant requests. 

In determining whether to seek the commissioner’s authorization to disregard a request, public bodies may take a holistic approach by considering existing requests, recently completed requests or anticipated requests by an applicant that may serve to illustrate a pattern of behaviour. This is particularly relevant when contemplating the repetitious or systemic nature of a request or series of requests. 

When making an application to the commissioner, a public body should keep in mind that they bear the burden of proof with respect to demonstrating how the  
request(s) meet specific criteria under s. 43 or why the request(s) should be disregarded. 

Policy

  1. When asking the commissioner for section 43 authorization, the head of the public body must apply in writing.

Procedure

  1. Applications to the commissioner will document applicable considerations and factors, such as:  

  • evidence that the public body has exercised considerable restraint and made every effort to assist the applicant under section 6; 
     

  • an explanation/evidence of how the request(s) meet the specific criteria outlined under s. 43 (see examples listed below under Interpretation). 

  1. Where practicable, public bodies will notify the applicant of their s. 43 application to the commissioner. This can be achieved by cc’ing the applicant when submitting an application. (Note: it is standard practice for the commissioner’s office to notify the applicant regardless of whether the public body does so) 

 

Interpretation

Non-exhaustive list of considerations and examples 

With respect to frivolous or vexatious requests: 

  • the applicant is using the Act as a retaliation for past action or tool for harassment. 

  • the applicant is not using the Act for purposes for which it was intended and the applicant is not acting in good faith. 

  • the request is not being made to obtain information or achieve a legitimate correction of information, but rather to tie up the resources of the public body or frustrate the administration of a particular program or activity. 

  • the request has no sound basis in fact or is malicious. 

  • the applicant is making unreasonable demands on the staff of the public body to process requests. 

  • specific evidence that the applicant has generated requests that were submitted under a variety of names. 

  • the applicant’s own statements which demonstrate their intentions to use the Act in a way for which it is not intended or not in good faith. 

With respect to requests unreasonably interfering with the operations of the public body due to being excessively broad or repetitious or systematic in nature:  

  • the impact on day-to-day operations of the public body as a result of resources required, or already expended, to process the request(s). This includes considerations around relative size of the public body and available staff and resources. 

  • the frequency and methodical nature of requests that generate or are likely to generate the same information or records. 

  • the unnecessary nature of the request given the level of similarity to another request and the likelihood of the request involving or generating the same information or records. 

  • continual or repeated requests for records that a public body has already provided or has indicated to the application that it does not have. 

Sectional Index of Commissioner's Orders

The Office of the Information and Privacy Commissioner maintains a Sectional Index of Commissioner’s orders organized by the Act’s section numbers.  

 

The information in this manual is not intended to be and should not take the place of legal advice.  

Last updated: May 2022