When is an FOI request frivolous or vexatious?

Man With a Fish (Dirck Vellert)

Besides the exemptions and exceptions available under Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) and the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), both FIPPA and MFIPPA also allow institutions to deny requests “if the head is of the opinion on reasonable grounds that the request for access is frivolous or vexatious” (see FIPPA s.10 and MFIPPA s.4).

What do these words mean?  The concept of a “frivolous or vexatious” proceeding was transplanted from the world of civil procedure into the land of FOI under FIPPA and MFIPPA in order to allow institutions to “dismiss” requests that appear to be made in bad faith or are otherwise an abuse of the system.  The phrase “frivolous or vexatious” has is origins in common law civil court procedure.  Under Ontario’s Rules of Civil Procedure (the “Rules”), in a civil court case, the Court may, on its own initiative, stay or dismiss a proceeding or a motion if it appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court (see Rule 2.1.01(1) and 2.1.02 (1)).  Likewise, a defendant in a civil case may ask the court to stay or dismiss an action on the basis that the action is frivolous or vexatious or is otherwise an abuse of the process of the court (see Rule 21.01(3)(d)).

Although these words are commonly seen together, each has its own meaning.  A “frivolous” request at its core is one made not for a genuine need (such as obtaining important information), but rather for some other, “frivolous” purpose.  A vexatious request, on the other hand, is a request that is intended merely to create frustration or annoyance.

The Information and Privacy Commissioner of Ontario (IPCO) is frequently asked to review an institution’s decision that an FOI request is frivolous or vexatious.  Institutions should brace themselves for the likelihood of an appeal to the IPCO whenever a request is refused on this basis; if the requestor believes their request is a valid one, they are likely to appeal to IPCO simply to assert their rights; on the other hand, if the requestor submitted the request merely to annoy or frustrate the institution, what better way to increase the institution’s annoyance and frustration than to push the institution through a needless appeal with IPCO.

It is therefore especially important to ensure that any decision to refuse a request on the basis that it is frivolous or vexatious is made on highly reasoned and defensible grounds.  A decision from IPCO finding that an institution has wrongly labelled a valid request as “frivolous or vexatious” and therefore refused to process the request can be an embarrassment for the institution and leave it looking like it is trying to hide or delay the release of information and shirk its responsibilities under Ontario’s FOI regime.

Permitted justifications for finding a request frivolous or vexatious

Let’s now look into what justifications are available to an institution to refuse to respond to a request on the basis that the request is frivolous or vexatious.  The regulations under FIPPA and MFIPPA spell out a couple of ways that a request may be frivolous or vexatious.  FIPPA Reg. 460, s. 5.1 and MFIPPA Reg. 823, s. 5.1 both state:

A head of an institution that receives a request for access to a record or personal information shall conclude that the request is frivolous or vexatious if,

(a) the head is of the opinion on reasonable grounds that the request is part of a pattern of conduct that amounts to an abuse of the right of access or would interfere with the operations of the institution; or

(b) the head is of the opinion on reasonable grounds that the request is made in bad faith or for a purpose other than to obtain access.

Request made in bad faith or for a purpose other than to obtain access

Part (b) sets out the core justification for allowing an institution to refuse a request on the basis that it is frivolous or vexatious: i.e., if the institution has reasonable grounds to assume that the request under consideration is being made in bad faith or for a purpose other than to obtain access.  In other words, if a request is intended merely to put the institution through extra work (where the requestor doesn’t really care about receiving the information requested), or to annoy certain employees of the institution, or if the request is for information that the requestor knows does not exist or knows he has no legal right to obtain, these would all be indications that the request might have been made in bad faith or for a purpose other than to obtain access.

Abuse of the right of access

Now, sometimes the wording of a specific request may not make it obvious that a request is frivolous or vexatious, but in the context of the history between the institution and the requestor, and what the institution knows about the requestor’s past conduct, the institution is able to ascertain that the request is actually frivolous or vexatious.  This is where part (a) above comes in.  Part (a) provides an institution the option of citing the requestor’s conduct, including the requestor’s other FOI requests, to help the institution to make the case that the specific request being rejected amounts to an “abuse of the right of access” and therefore is frivolous or vexatious.

Pattern of conduct interfering with the operations of the institution

Part (a) also gives institutions another tool for rejecting an access request:  if the requestor’s pattern of conduct would interfere with the operations of the institution.  This is helpful and should be seen as a separate basis for rejection of a request by the institution.  This basis doesn’t require the institution to allege that the requestor is abusing their right of access; rather, the institution merely needs to show that the pattern of conduct of the requestor (including their other requests) would interfere with the operations of the institution.  A requestor may have a perfectly valid reason to make dozens or hundreds of FOI requests in a year, but if such requests would interfere with the operations of an institution (potentially including the institution’s ability to respond to FOI requests from other requestors in a timely fashion) the institution may have a basis for rejecting requests on that basis alone.  A small institution without dedicated FOI staff may be in a better position to argue that attempting to respond to a large volume of requests from a single requestor would interfere with the operations of the institution; a large institution with dedicated FOI staff could still make this argument, but it may be harder for them to make their case.

Non-exhaustive

Importantly, the wording of s.5.1 of the regulations does not say that part (a) and part (b) above are the only justifications available to an institution for rejecting a request on the basis that it is frivolous or vexatious; however, decisions by the IPC have generally relied on the wording of s.5.1 when upholding an institution’s rejection of a request on this basis.

Specific Decisions

As mentioned before, the IPC is frequently asked to decide whether an institution’s decision that a request was frivolous or vexatious was made on reasonable grounds.  Let’s look at a few of the most recent relevant IPC decisions that may help your institution predict whether a request you have received would be classified as frivolous or vexatious on appeal to the IPC:

School Bus Stop (MO-3674)

Request found NOT be frivolous or vexatious

The requestor asked for records relating to her complaint about her children’s school bus stop.  The institution (the Simcoe Muskoka Catholic District School Board) refused to provide the requested documentation on the basis that the request was frivolous or vexatious.  The institution noted that the request was just one small part of a larger dispute involving numerous proceedings initiated by the requestor relating to the school bus stop.  The institution alleged that the request was made in bad faith or for a purpose other than to obtain access.  The IPC disagreed, noting the requestor had a “right to exhaust all of the complaint processes available, which are unrelated to access under the Act.”  The instantiation of numerous other proceedings related to the dispute by the requestor did not mean that the requestor’s FOI request was frivolous or vexatious.

Three Concurrent Requests (MO-3667)

Request found NOT be frivolous or vexatious

The requestor submitted three requests to North Bay Hydro Services Inc: the first request related to agreements covering a co-generation facility at a hospital; the second asked for the institution’s financial statements from 2013-2016; and the third asked for information about the institution’s legal costs.  The institution noted the requestor had made prior related requests and argued this presented a “pattern of conduct”; the requestor responded that “five requests in four years” should hardly be considered problematic.  The institution noted it had only seven employees and argued the requests were a disruption.  The IPC concluded that the institution had not established on reasonable grounds that the requests were  frivolous or vexatious as defined in section 5.1.

Fourteen-Part Request (MO-3659)

Request found to be frivolous or vexatious

The requestor submitted a request for records relating to development in the Town of Iroquois.  The Town summarized the request as “contain[ing] 14 separate requests for documents, targeting over a decade’s worth of electronic and hard copy records from over 16 different custodians.”  The Town refused to provide records with respect to parts 1-9, 12 and 13 of the request, which in the Town’s opinion were frivolous or vexatious.  The Town characterized the requestor as having submitted 48 requests over a 15-month period.  In terms of the Town’s ability to respond to the volume of requests, the Town explained “that it is a small municipality (population 4,537 in 2016) and that the closure of the paper mill at the end of 2014 created budgetary pressures that continue to this day. Specifically, there are only three staff members, including the CAO, in the department to deal with all administrative responsibilities, including those under the Act” and argued that the requests were “extremely burdensome to the town’s administration”.  The IPC agreed with the Town, finding that the requestor had demonstrated a pattern of conduct that would interfere with the Town’s operations under s.5.1(a) of the regulation.  The IPC also found the requests were both “overly broad” as well as “overly detailed” in parts, but “was not satisfied that the town’s evidence establishes a pattern of conduct on the appellant’s part that amounts to an abuse of the right of access.”  That said, the IPC’s finding that there was a pattern of conduct that would interfere with the operations of the Town was sufficient to uphold the Town’s decision not to respond to parts of the request on the basis that they were frivolous or vexatious.

Imposing conditions on the requestor

The IPC has frequently taken the approach of imposing conditions on requestors whose requests are confirmed by the IPC on the appeal to be frivolous or vexatious.  One common condition the IPC may impose is requiring the requestor to have only one active FOI file with respect to a particular institution (MO-1782, PO-3188, MO-1963); and in another decision, the IPC limited the number of “parts” a requestor’s FOI requests to a particular institution could contain (MO-3659).  The IPC may even “name and shame” the requestor in order to allow other institutions whether a particular request might fit within the requestor’s “established pattern of conduct” (M-850).

The potential for conditions to be imposed on requestors by the IPC may serve as something of a deterrent to requestors who might otherwise be more keen to appeal almost any decision by an institution that their request was frivolous or vexatious.

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Links to Resources:

Freedom of Information and Protection of Privacy Act (FIPPA) https://www.ontario.ca/laws/statute/90f31

Freedom of Information and Protection of Privacy Act, R.R.O. 1990, REGULATION 460 (GENERAL) https://www.ontario.ca/laws/regulation/900460

Municipal Freedom of Information and Protection of Privacy Act(MFIPPA) https://www.ontario.ca/laws/statute/90m56

Municipal Freedom of Information and Protection of Privacy Act, R.R.O. 1990, REGULATION 823 (GENERAL) https://www.ontario.ca/laws/regulation/900460

Information and Privacy Commissioner of Ontario (IPCO) Decisions https://decisions.ipc.on.ca/ipc-cipvp/en/nav.do

Ontario Rules of Civil Procedure https://www.ontario.ca/laws/regulation/900194

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