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Frivolous or Vexatious
Requests
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The Commission may invoke conditions on processing requests where the requester has
engaged in a course of conduct which constitutes an abuse of process. If an institution
believes that a requester is engaged in an abuse of process, the institution should issue a
decision letter outlining this fact, which the requester can appeal. Factors considered by the
Commissioner in determining whether a requester is engaged in an abuse of process are: (1)
whether the volume of requests or appeals are excessive or unreasonable to administer, (2)
whether by virtue of the nature, scope or rate of requests, the requester has demonstrated no
genuine interest in the information for its own sake, but instead is interested in the nuisance
value generated for an institution, (3) information indicating that the requester's objective is
to harass or burden an institution. (Orders #M-618, M-724, M-850)
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A pattern of conduct means a regular form of behaviour over a period of time and requires
recurring incidents of related or similar requests on the part of the requester. Examples of an
abuse of the right of access are proceedings without any reasonable ground; whose purpose
is not legitimate, but is designed to harass; situations where a process is used more than once,
revisiting an issue previously addressed. A pattern of conduct that would interfere with the
operations of an institution is one that would obstruct or hinder the range of effectiveness of
the institution's activities.(Order #M-850). The request in question must fit into
a pattern
such as requests for overlapping subject matter.(Order #M-860)
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Where bad faith has been established, there are no further requirements to find the request
frivolous or vexatious. (Order #M-850,
M-860)
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Once an institution is satisfied on reasonable grounds that the request is made for a purpose
other than to obtain access, this provision is met. (Order #M-850)
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An abuse of process can mean:
1) proceedings instituted without any reasonable ground;
2) proceedings whose purpose is not legitimate, but is rather designed to harass, or to
accomplish some other objective unrelated to the process being used;
3) situations where a process is used more than once, for the purpose of revisiting an issue
which has been previously addressed. (Order #M-860)
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An institution invoking this provision has the burden of proof regarding decisions that a
request is frivolous and/or vexatious and must provide evidence of a basis for this conclusion.
The requester is given an opportunity to respond to this evidence and then the Commission
will decide whether the institution has discharged this "preliminary" onus. (Order
#M-850).
Failure of the appellant to respond to the evidence does not automatically favour the
institution's view that the request is frivolous or vexatious.(Order #M-860)
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The Commission ruled that an institution can submit an argument that an appeal is
frivolous,
vexatious or an abuse of process at any time during the appeal stage. If sustained, such an
argument could undermine the legitimacy of the appeal itself.(Order #P-1100)
- In order to meet the test in this provision the institution can not consider a requester's
parallel activities in
other forums. (Order #M-1066)
Not Frivolous and Vexatious
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The fact that requesters are seeking access to information for their own ends (such as to
make
a complaint) can not be considered an "objective unrelated to the access to information
process being used". (Order #M-860)
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The requester's complaints to the provincial government and
police, as well as his litigation, do not constitute
"patterns of conduct" because they are unrelated to access
requests under the Act. Also they are not recurring
incidents of related or similar requests. (Order #M-906)
- The abuse of the right of access described by section 5.1(a) refers only to the access
process
under the Act, and is not intended to include proceedings in other forums. (Orders #M-906, M-1066, M-1071) A similar distinction can be made
in certain circumstances between formal
requests for access under the Act, and informal contact between a member of the public and an
institution. (Order #P-1534)
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