What to know about ‘vexatious’ FOI requester provisions

During the early days of the Secret Canada investigation, when Robyn and I were speaking with as many people involved in the FOI system as possible, I was surprised to hear the same complaint from so many of the officials administering the system: A small percentage of requesters accounted for an inordinate amount of these offices’ work.

These requesters would ask for decades of e-mail correspondence, or file endless follow-up FOIs with near-identical wording. They were also often intransigent – unwilling to negotiate, modify their request or consider that the FOI office was acting in good faith – and frequently filed appeals.

As a quasi-constitutional right, the ability to file FOIs is supposed to be accessible to all – or, at least, almost everyone; the federal government, for instance, limits who is eligible to file requests. But some jurisdictions, such as Ontario, B.C. and the feds, have built in safeguards to protect FOI offices from these demanding, high-volume requesters.

Their laws have provisions for what they call “vexatious” or “frivolous” requesters. If a public institution believes a requester is wielding FOI in bad faith, with the express purpose of being obtrusive or annoying, FOI offices can ask that information commissioners deem the requester vexatious, limiting their ability to file future requests.

In practice, however, information commissions have been hesitant to declare requesters vexatious since that amounts to a significant curtailing of a person’s right of access. 

Between June, 2019, and March, 2022, the federal Office of the Information Commissioner (OIC) dealt with 46 applications from public institutions to refuse to process access requests. It only allowed them to disregard these requests in three cases, roughly 7 per cent of the time. The remaining applications were either denied or withdrawn by the institution. (If you’re curious, here’s the OIC’s guide for public bodies seeking to decline to process a request.)

Of course, information commissioners do sometimes rule that requesters are being vexatious.

Take recent Ontario appeals MA20-00557, MA21-00213 and MA21-00214, which together comprise order MO-4257, from September, 2022. In that case, a law clerk working on behalf of plaintiffs in a class-action suit regarding flood risks filed three multipart access requests to the Town of Oakville asking for 20 years of records regarding flood plain maps and flood risks.

According to the Ontario Information and Privacy Commissioner (IPC)’s summary of the dispute, the Town of Oakville claimed that “the high volume of requests has overburdened the town and that the number of requests, even if only the ones made by the appellant are considered … has been excessive by reasonable standards.” 

The Town went on to note that the law clerk, along with a lawyer working for another firm involved in the class action, had already filed a combined “83 requests totalling 353 parts.” Oakville had spent more than 488 hours (or 12 weeks) working on these requests, and more than half of those had yet to be paid for.

Ultimately, the IPC ruled that the requests were vexatious:

“I am not entirely convinced that the appellant is attempting to burden the system with his access requests, including the requests that are at issue here. In my view, he is attempting to obtain information relating to the class action litigation or is attempting to hold the mayor and town councillors accountable by scrutinizing various requested records. In the circumstances of this appeal, however, I find that it is irrelevant whether the appellant intended to burden the system because the impact of his pattern of conduct, culminating with his excessively broad and unusually detailed requests, has produced the same outcome, namely an abuse of the right of access. In this regard, I have not considered the personal characteristics of the appellant in my determination, simply the impact of his conduct.”

From there, the IPC ordered that the clerk would be limited to two active requests at a time – only one of which could be related to the continuing class action. It also limited requests to two parts, and limited the clerk to two appeals, significantly curtailing the volume of requests filed to the Town of Oakville regarding the class action.

The story doesn’t end there, since decisions regarding vexatiousness can have trickle-down effects. A year later, the IPC ruled that requests from the same legal team to Conservation Halton were also vexatious, relying in part on its 2022 decision, and imposed similar limits.

The lesson here: If a public institution has begun to warn you it considers your requests to be frivolous or vexatious, don’t take that warning lightly.

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