When is a Freedom of Information request frivolous or vexatious?
Freedom of information requests will be refused if they are "frivolous or vexatious." The bar is very high for a request to be considered frivolous or vexatious – the head of the institution that is refusing the claim needs to have evidence to substantiate their decision. This short article is intended to give an overview of the law surrounding the Freedom of Information and Protection of Privacy Act and its application to frivolous or vexatious claims.
The Law: Basics
The Freedom of Information and Protection of Privacy Act1, or "FIPPA", governs information requests made by individuals to public institutions. The Information and Privacy Commissioner of Ontario, or "IPCO" adjudicates whether refusals are justified or not through decisions known as "Orders."
As a general rule, individuals have a right to access information. As the exception to this rule, section 10 states:
"unless...(b) the head is of the opinion on reasonable grounds that the request for access is frivolous or vexatious."
Section 5.1 of Regulation 460, further develops the term "frivolous or vexatious":
"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 [i]abuse of the right of access or [ii]would interfere with the operations of the institution; or
(b) the head is of the opinion on reasonable grounds that the request is [iii]made in bad faith or [iv]for a purpose other than to obtain access."2
Case law has established that this discretionary power should "not be exercised lightly, as it can have serious implications on the ability of a requester to obtain information under the Act."3
The Law: More Specifically
As case law developed, four main categories of "frivolous or vexatious" behaviour have emerged. In this section, each category is examined in finer detail.
1. Abuse of access
This category covers requests which are part of a pattern of contact that amounts to an abuse of the right of access.
2. Interference with operations
A request may be denied if it is part of a "pattern of contact that interferes with the operations of the institution."
3. Bad faith
This category covers requests which are made intentionally in bad faith. The IPCO "has interpreted 'bad faith' as implying 'the conscious doing of a wrong because of dishonest purpose or moral obliquity."
4. Ulterior motive, or other purposes.
This is when a request is made for a purpose other than to obtain access.
1 R.S.O. 1990, c. F.31
2 R.R.O. 1990, Reg. 460: GENERAL
3 Order PO-2688
Originally Published by Siskinds, January 2021
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.