Ontario's Freedom of Information and Protection of
Privacy Act1 ("FIPPA") and its
subordinate regulations2 permit a government institution
to decline to process access to information requests on the basis
that they are frivolous and vexatious. Two questions arise. First,
what are the grounds for finding a frivolous or vexatious access
request? Second, what is the proper remedy in relation to a
frivolous and vexatious request? A recent decision of Ontario's
Information and Privacy Commissioner ("IPC"), Order
PO–3539, addresses these questions.
There are two "frivolous and vexatious" grounds
available in the regulation. One relates to a pattern of conduct,
the other relates to bad faith and improper purposes.
In Order PO-3539, the adjudicator first considered whether there
was a pattern of conduct that amounts to an abuse of the right of
access or would interfere with the operations of the institution.
She held that an institution may consider the following factors to
determine whether a pattern of conduct amounts to an "abuse of
the right of access":3
The number of requests: is the number
excessive by reasonable standards?
Nature and scope of the requests: are
they excessive broad and varied in scope or unusually detailed? Are
they identical to or similar to previous requests?
The 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 requestor's aim to harass government or to break or
burden the system?
Timing of the requests: is the time
of the requests connected to the occurrence of some other related
event, such as court proceedings?
The adjudicator relied on several conclusions to hold that the
requests being appealed were frivolous and vexatious: the
requestor's 44 requests for access in under a year was held to
be excessive by reasonable standards;4 the requestor
clustered several broad requests on one day;5 requests
involved post-request adjustments;6 the requestor's
requests commented on potential fee estimates;7 the
requestor had failed to pursue many past requests;8 and
the requestor's emails demonstrated he was using the access
process to express frustration with the child welfare system in
Ontario and the Ministry.9
The adjudicator declined to consider whether the requestor's
request fell within the "bad faith" criteria, section
5.1(b) of the regulation.
The adjudicator held that where a request is found to be
frivolous or vexatious, the IPC will uphold the institution's
decision to decline to process the access request.10 The
adjudicator also held that the IPC may impose conditions such as
limiting active requests and appeals that an requestor may have in
relation to a particular institution.11
In PO-3539, the adjudicator held that the requestor was only
permitted to submit a single access request at a time. She held
that the requestor could only make a new access request once the
institution had issued the final decision on the prior
request. The adjudicator also noted that her decision did not
limit or preclude a finding, where appropriate, that any current or
future request is frivolous and vexatious.
Institutions faced with what they consider a series of abusive
access requests now have a concise IPC Order by which to compare
patterns of conduct by requestors. Notably, the IPC relied upon
facts extraneous to the particular requests being appealed to
determine that the requests were frivolous and vexatious. An
institution can consider it "fair game" on appeal to
include other information related to any requestor that it believes
is making frivolous and vexatious requests.
1. Freedom of Information and Protection of Privacy
Act, R.S.O. 1990, c. F.31, s.10(1)(b), (2), 24(1.1),
2. Freedom of Information and Protection of Privacy
Act, R.S.O. 1990, c. F.31, s.60(1)(0.a), R.R.O. 1990, Reg.
3. Order PO-3539 at para. 13.
4. Ibid. at para. 25.
5. Ibid. at para. 26.
6. Ibid. at para. 26.
7. Ibid. at para. 26.
8. Ibid. at para. 29.
9. Ibid. at para. 30.
10. Ibid. at para. 33.
11. Ibid. at para. 33.
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).