Convenient omission

Gormless Minister of Secrecy Felix Collins is vewy upset that people are still not getting the point of Dundergov's Bill 29.

In a letter published in today's Telegram, the Minister of Secrecy responds to columnist Pam Frampton:

Frampton also continues to assert that the provincial government can “protect itself from politically troubling disclosure” by deeming requests frivolous and vexatious. Again, this is wrong.


Being able to refuse a request because it is frivolous and vexatious was a recommendation by John Cummings, who undertook the review of ATIPPA. It is also a provision which several other provinces have in their access to information legislation.

The point that Frampton misses is that the public body must notify an applicant that the request is refused due to it being frivolous and vexatious and a reason must be provided for such a refusal.

The applicant then has the right to appeal that decision with the Office of the Information and Privacy Commissioner or the court.

It is true that other provinces have "frivolous and vexatious" provisions in their access to information legislation. But the Minister of Secrecy, like John Cummings before him glosses over a very important point.

In every other Canadian jurisdiction which has such a provision, with the sole exception of Ontario, a request can only be deemed "frivolous and vexatious" with the prior consent of the information commissioner. (In two provinces, and at the federal level, there is no such provision at all.)

Bill 29, the Progressive Conservative Memorial Secrecy Act, provides:

43.1 (1) The head of a public body may disregard one or more requests under subsection 8(1) or 35(1) where

(a) because of their repetitive or systematic nature, the requests would unreasonably interfere with the operations of the public body or amount to the abuse of the right to make those requests;
(b) one or more of the requests is frivolous or vexatious; or
(c) one or more of the requests is made in bad faith or is trivial.

By sharp contrast, here are the equivalent provisions in those other provinces' and territories' legislation, which all require prior consent.

Prince Edward Island:

52. If the head of a public body asks, the Commissioner may authorize the public body to disregard any request made under subsection 7(1), if the request

(a) would unreasonably interfere with the operations of the public body or amount to an abuse of the right to access, because of the repetitious or systematic nature of the request; or
(b) is frivolous or vexatious.

New Brunswick:

15. On the request of a public body, the Commissioner may authorize the head to disregard one or more requests for access if the request for access

(a)would unreasonably interfere with the operations of the public body because of the repetitious or systematic nature of the request or previous requests,
(b) is incomprehensible, frivolous or vexatious, or
(c) is for information already provided to the applicant.

Quebec:

137.1. The Commission may authorize a public body to disregard applications that are obviously improper because of their number or their repetitious or systematic nature or an application whose processing could seriously interfere with the body's activities.

[N.B.: The Quebec legislation is silent on the question of "frivolous and vexatious" requests]
Manitoba:

13 (1) The head of a public body may disregard a request for access if he or she is of the opinion that

(a) the request is incomprehensible, frivolous or vexatious;
(b) because of their repetitious or systematic nature, the requests would unreasonably interfere with the operations of the public body or amount to an abuse of the right to make those requests; or
(c) the request is for information already provided to the applicant.

Alberta:

55 (1) If the head of a public body asks, the Commissioner may authorize the public body to disregard one or more requests under section 7(1) or 36(1) if

(a) because of their repetitious or systematic nature, the requests would unreasonably interfere with the operations of the public body or amount to an abuse of the right to make those requests, or
(b) one or more of the requests are frivolous or vexatious.

British Columbia:

43 If the head of a public body asks, the commissioner may authorize the public body to disregard requests under section 5 or 29 that

(a) would unreasonably interfere with the operations of the public body because of the repetitious or systematic nature of the requests, or
(b) are frivolous or vexatious.

Northwest Territories:

53. The Information and Privacy Commissioner may, at the request of the head of a public body, authorize the public body to disregard a request under section 6 that

(a) is frivolous or vexatious;
(b) is not made in good faith;
(c) concerns a trivial matter;
(d) amounts to an abuse of the right to access; or
(e) would unreasonably interfere with the operations of the public body because of its repetitious or systematic nature.

Nunavut:

53. The Information and Privacy Commissioner may, at the request of the head of a public body, authorize the public body to disregard a request under section 6 that

(a) is frivolous or vexatious;
(b) is not made in good faith;
(c) concerns a trivial matter;
(d) amounts to an abuse of the right to access; or
(e) would unreasonably interfere with the operations of the public body because of its repetitious or systematic nature.

Yukon:

43 (1) If a public body asks, the commissioner may authorize the public body to disregard one or more requests under section 6 or section 32 that

(a) would unreasonably interfere with the operations of the public body because of the repetitious or systematic nature of the requests; or
(b) are frivolous or vexatious.