Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 3, Access to Records. Updated 5 May 2023. 156 Not in good faith means the opposite of “good faith”, generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or other contractual obligation, not prompted by an honest mistake as to one’s rights, but by some interested or sinister motive.255 When an applicant refuses to cooperate with a government institution in the process of accessing information or if a party misrepresents events to the IPC, this could suggest the party is not acting in good faith. Bad faith is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will. The intention to use information obtained from an access request in a manner that is disadvantageous to the government institution does not qualify as bad faith. To the contrary, it is appropriate for requesters to seek information “to publicize what they consider to be inappropriate or problematic decisions or processes undertaken” by government institutions.256 When considering whether a request for review was made on grounds that are frivolous, vexatious or not in good faith, the Commissioner is determining whether there is a pattern or type of conduct that amounts to an abuse of the right of access. The following factors are considered. Depending on the nature of the case, one factor alone or multiple factors in concert with each other can lead to a finding that a request is an abuse of the right of access: • Number of requests: is the number excessive. Where the volume of requests interferes with the operations of a government institution it can be argued the requests are excessive. To interfere with operations, the volume of requests must obstruct or hinder the range of effectiveness of the government institution’s activities. • Nature and scope of the requests: are they excessively broad and varied in scope or unusually detailed. Are they identical to or similar to previous requests. • Purpose of the requests: are the requests intended to accomplish some objective other than to gain access. For example, are they made for “nuisance” value, or is the applicant’s aim to harass the public body or to break or burden the system. • Timing of the requests: is the timing of the requests connected to the occurrence of some other related event, such as a court or tribunal proceeding.257 • Wording of the request: are the requests or subsequent communications in their nature offensive, vulgar, derogatory or contain unfounded allegations. Offensive or 255 ON IPC Order MO-3108 at [37]. 256 ON IPC Order MO-1924 at p. 9. 257 Four factors adopted from ON IPC Order MO-3108 at [24]. Also, in SK OIPC Review Report F-2010002 at [69].
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