Discretion for frivolous and vexatious requests

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Proposal

Give government institutions and the Information Commissioner authority to decline to process requests or complaints that are frivolous or vexatious.

Background

Currently under the Access to Information Act, there are no limits on the number of requests that an individual can submit, nor on how broad a request can be. 

There are examples of individuals making hundreds of requests in a year to the same operational area of a government institution, or requesting all emails of a certain employee for a number of years.

Open government efforts seem unlikely to reduce the impact of requests of this nature.

Multiple requests from the same requestor and very broad requests can (whether intentionally or not) interfere with an institution's ability to do its other work. This can have a negative impact on an institution's resources and its ability to respond to other requests. 

In turn, over-demand can have a negative impact on the right of access of other requestors. It can also place a strain on public resources: in 2014-, the Government of Canada received 68,193 access to information requests and spent over $67 million in direct costs to administer the Access to Information Act.

These types of requests (sometimes called frivolous and vexatious requests) may not be consistent with the Act's purpose of strengthening the accountability of government to its citizens and furthering public debate in an open and democratic society.

Jurisdictions that grant institutions the right to decline to process "frivolous and vexatious" requests generally ensure careful oversight to ensure the authority is properly exercised. 

The legislation of British Columbia, Alberta, New Brunswick, Prince Edward Island, Newfoundland and Labrador allow government institutions to decline to process "frivolous and vexatious" requests, subject to the prior approval of their provincial Information Commissioner.

In Manitoba and Ontario, institutions can directly decline to process such requests, with a right of appeal to their Commissioners. 

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Comments

Submitted by Michael Welsh on May 15, 2016 - 1:39 PM

I find it self-serving for the government to single-out the need to deny "frivolous and vexatious" requests from the public. Is this really a top-10 problem? Most criticism of the Act to date has focused on delays, lack of response and bad faith on the part of government institutions. Do we really need to give government authorities more reasons and latitude to say no? The reform proposals coming forward are pretty thin gruel so far and sadly reflect largely the perspectives of those on only one side of the service counter, ie. the government's. Let's hope this consultation doesn't just reinforce that!

Submitted by Will Simmering on June 15, 2016 - 7:58 PM

It really is an issue, as problem requesters take administrative time away from doing work on other requests, which in turn lead to the delays you are concerned about. It is not unknown for requesters to get into a negative feedback loop, where they constantly ask for personal information that leads only to correspondence they already have had with the department they are requesting information from. At some point a Department has to be able to say "no", for the simple reason that further review would be counterproductive and would take time away from more pressing files. A lot of the delays and lack of response come from a simple lack of resources: far too often, in order to find Departmental budget efficiencies, ATIP offices are left short-staffed while the workload goes up or remains the same. Some officers may have 30-40 files open at any one time, some of which may involve complex review of thousands of pages and hours of back and forth consultation with internal and external parties. ATIP officers work long hours, and often weekends, to meet legislative deadlines. It's hardly self-serving to say no to a requester who has already received a response and continues to send requests on the same issue simply because they can.

Submitted by Eric Hortop on May 05, 2016 - 3:44 PM

I think this is a reasonable reform so long as the requests deemed frivolous or vexatious themselves are then posted somewhere the public can access -- almost certainly with identifying details stripped from the request itself, but possibly with the requestor's information left out in the open. I think that this could be a good check on abuse of the authority.

Submitted by Steve Kasouf on May 09, 2016 - 3:10 PM

I agree with this comment. By posting this information on the department's proactive disclosure page, this will educate the public as to what could be considered a frivolous or vexatious request. Too often ATIP requester are asking departments for information with very broad date ranges or scopes of the request and are unwilling to narrow the scope. To me, this is unreasonable on the requester's part and could be as a result of them not wanting to pay $5 for multiple requests of a more narrow date range, for example. Instead, they'll encompass the request of a 10 year date range all in one and pay only the prescribed $5 fee. If this right is not given to government departments it could result in an increase of 9(1)(a) extensions for lengthy periods of time due to the potential for large volumes of records and interference to government operations.

Submitted by Robert Lytle on May 03, 2016 - 7:32 PM

The ability to deny processing of frivolous requests is a very important part of the overall strategy. Without this ability, public agents will not be able to keep up with demand on the vast majority of requests. Allowing frivolous requests may create an environment of closed data, potentially increasing the number of exceptions to the Act by consequence. It may also encourage slow-down, penalising, or strong-arm tactics on the part of government servants, if even just for preservation of sanity and proper office operation (and really, who would blame them?). Without prejudice, I share the following opinion from a state legislative attorney, where no definition of frivolity exists in the Freedom of Information Act: https://www.cga.ct.gov/2004/rpt/2004-R-0369.htm This all comes as a consequence of ill-defined or undefined terms. We can do better for our government workers and the public here in Canada. What is needed is a very public proposal, driven by all stakeholders (public and private) for what constitutes frivolous and vexatious. Let us learn from the impact of provincial and US state strategies in this case, and clearly and publicly define the rules and guidance for both requestors and data owners / data fulfillers. Making these rules and guidelines public, while still retaining some ability to appeal, would strike a good balance between the rights of the public and the smooth operation of government. We can model these rules from global observation of other Open Data movements, as well as the process followed for definition of tricky terms such as "reasonable", "timely", etc. across other regulatory frameworks such as the Consumer Reporting Act. The extra-legal guidance provided by agencies, with ample private sector input, can smooth the way for great access to Open Data for both public and private actors.