What recourse do municipalities have when they receive access requests which they consider to be a waste of time and resources?
Individuals have a right to access records in the possession or under the control of a municipality pursuant to The Local Authority Freedom of Information and Protection of Privacy Act, SS 1990-91, c L-27.1 (LA FOIP). And municipalities have a duty to respond to written requests for access openly, accurately and completely.
However, there are times when applicants abuse the right of access by making “nuisance requests” to harass the municipality. In Rural Municipality of Lumsden No. 189 (Re), the Information and Privacy Commissioner (the “Commissioner”) cautioned that “LA FOIP must not become a weapon for disgruntled individuals to use against a local authority for reasons that have nothing to do with the Act.”
Municipalities may apply under ss. 43.1(1) of LA FOIP to the Commissioner to disregard an access request.
The Commissioner may authorize a municipality to disregard an access request if the request meets one or more of the following criteria:
- The request would unreasonably interfere with the operations of the government institution because of the repetitious or systematic nature of the request;
- The request would amount to an abuse to the right of access because of the repetitious or systematic nature of the request; or
- The request is frivolous, vexatious, not in good faith or concerns a trivial matter.
When is an access request repetitious or systematic?
In the 2021 decision, Rural Municipality of North Qu’Appelle No. 187 (Re), the Commissioner set out factors to consider when determining whether an access request is repetitious or systematic:
- Does the applicant ask for the same records or information more than once?
- Are the requests similar in nature or do they stand alone as being different?
- Do previous requests overlap to some extent?
- Are the requests close in their filing time?
- Does the applicant continue to engage in a determined effort to request the same information?
- Does the applicant engage in a regular or deliberate pattern of conduct in making the repeated requests?
- Does the applicant methodically request records or information in many areas of interest over extended time periods, rather than focusing on accessing specific records or information of identified events or matters?
- Has the applicant requested records or information of various aspects of the same issue?
- Has the applicant made a number of requests related to matters referred to in records already received?
- Does the applicant follow up on responses received by making further requests?
- Does the applicant question the content of records received by making further access requests?
- Does the applicant question whether records of information exist when told they do not?
- Can the requests be seen as an continuum of previous requests rather than in isolation?
When does a repetitious or systematic request unreasonably interfere with a municipality’s operations?
Once an access request is found to be repetitious or systematic, the Commissioner must also consider whether the access request unreasonably interferes with a municipality’s operations in terms of time and resources. Factors to consider include:
- Is the request large and complex? Is the request confusing, vague, broadly worded or wide-ranging? Does the request include parameters such as date ranges?
- Did the municipality seek clarification about the request from the applicant? Was clarification obtained?
- Did the applicant’s clarification provide useful details to enable the municipality to effectively process the request?
- Did the applicant’s request impair the municipality’s ability to respond to the request in a timely fashion?
- How long will the request take to process?
- How many employees would be involved in processing the request?
- How many hours would it take to identify, retrieve, review, redact (if necessary) and copy records?
- How many total employees are there is the same office?
- Is there an employee assigned solely to process access requests?
In North Qu’Appelle, the municipality sought a review of an access request in excess of 30 unrelated items contained in 35 separate emails. The applicant’s last access request had taken over 90 hours for administrative staff to fulfill. The Commissioner concluded that the cumulative effect of all of the emails and access requests contained within would consume unreasonable amounts of time for municipality staff and would interfere with their ability to complete other municipality work.
When does an access request amount to an abuse of the right of access?
The Commissioner may allow the municipality to disregard an access request if there is a pattern of conduct that amounts to an abuse of the right of access. In Village of Neudorf (Re), the Commissioner set out the following factors to consider:
- Number of requests: The number of requests is excessive when the volume of requests obstruct or hinder the range of effectiveness of the municipality’s activities. For example, submitting up to 12 requests in one day is excessive.
- Nature and scope of requests: Are the requests excessively broad and varied in scope or unusually detailed? Are the requests identical to or similar to previous requests?
- Purpose of the requests: Are the requests made for “nuisance” value or intended to harass the municipality or to break or burden the system? In most cases, this consideration requires the drawing of inferences from an applicant’s behaviour as applicants seldom admit to a purpose other than access.
- Timing of the requests: Is the timing of the requests connected to some other related event, such as a court or tribunal proceeding? In some cases, increased requests and appeals following the initiation of court proceedings by a local authority can justify a conclusion that an applicant is abusing the right of access.
- Wording of the request: Are the requests or subsequent communications offensive, vulgar, derogatory? Do the requests contain unfounded allegations? Is the applicant displaying offensive or intimidating conduct?
Depending on the nature of the case, one of the above factors alone or the cumulative effect of multiple factors can lead to a finding that the access request is an abuse of the right of access.
When is an access request frivolous, vexatious or not in good faith?
The Commissioner may authorize a municipality to disregard an access request that is either frivolous, vexatious or not made in good faith.
Frivolous: A frivolous access request is a request that is trivial and without legal or factual merit.
Vexatious: An access request is considered vexatious when the applicant’s behavior suggests the primary purpose of the request is to continually or repeatedly harass a public body in order to obstruct or grind a public body to a standstill.
Not in good faith: In Lumsden, the Commissioner stated an access request may be found not to have been made in good faith when the applicant refuses to cooperate with the municipality in the process of accessing information or misrepresents events to the Commissioner.
Municipalities must show “unreasonable interference”
The burden of proof rests with the municipality to show that the applicant’s access request should be disregarded. In Village of Neudorf, the Commissioner stressed that the decision to disregard an access request is a serious matter as it could have the effect of removing an applicant’s express right to seek access to information. Accordingly, when making an application under s. 43.1(1) of LA FOIP, the municipality must meet a high threshold of showing “unreasonable interference” as opposed to mere disruption.
The MLT Aikins municipal lawyers have assisted municipalities with access to information requests. For more information, please do not hesitate to contact a member of our team.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.