May 27, 2012

FOI and the Serial and Repetitive Requester

Administrative Law
Freedom of Information
Professional Regulation

One challenge experienced by public bodies with FOIPPA requests is the person who, over a short period of time, makes a large number of serial requests, many of a repetitive nature, with the cumulative effect of the requests involving a substantial amount of information to be assessed for disclosure. Hundreds or thousands of hours may be needed to respond to these requests and regulators’ resources can be overwhelmed to the point of the request interfering with their ability to operate. In British Columbia, section 43(a) of the Freedom and Information and Protection  of Privacy Act, RSBC 1996, c. 165 (“FOIPPA”) provides potential relief to regulators who find themselves in this position. Similarly, the same escape valve is found in the parallel legislation enacted in Alberta (s. 55(1)(a)), Manitoba (s. 13(1)(b)), and Yukon (s. 43(1)), among others.

Our webinar on Privacy and Confidentiality on June 7th  (click here for more information) will delve into this issue in more detail, and offer up some tips on meeting the legal test. As a primer however, the recent case of BC College of Physicians and Surgeons (Re), 2011 BCIPC 40 is instructive. In that case, the College of Physicians and Surgeons of BC (the “College”) asked the Office of the Information and Privacy Commissioner (“OPIC”) for authorization to disregard any further requests for personal records from a physician who had already received all his personal information from the College through the processes available under FOIPPA. The College asserted that any further requests under FOIPPA from this physician would be frivolous, vexatious and/or repetitious for the purposes of s. 43 of FOIPPA, and therefore would warrant the College disregarding them.

The physician in question had been in an ongoing series of disputes with the College due to events that occurred in 1990, which resulted in his resignation from the College. These disputes included a defamation lawsuit, a complaint to the Ombudsperson of BC, and a complaint to the BC Human Rights Tribunal, all concerning the events in 1990, and all of which were dismissed against the College (para. 6). The physician had made some 20 requests from the College under FOIPPA, which were consolidated into seven requests, all of which were dealt with by the College (para. 7).  For this reason, the College was concerned with the expense that it might incur in any further dealings with requests from this individual.

The request of the College was, however, denied by the adjudicator of the OPIC, as the physician did not currently have any open FOIPPA requests with the College, and he had already requested and received all the personal information available to him with the College (para. 13). The adjudicator expressed concern with the College seeking relief from ‘future requests’ ,only and noted that the OIPC had never in the past granted relief for a case in which there were no remaining open requests (para. 13). The decision went on to note that in the ordinary course, there is no obligation on a public body to disclose copies of records they have already provided to an applicant through a previous request or other avenue of access (para. 15). For this reason, the adjudicator held that no order was warranted in the circumstances.

It is important to note that in this case, there were no further information requests from the College available to the former registrant that would not constitute repeat requests which the College could summarily deny.

Notably, when orders allowing bodies to disregard requests under section 43 have been granted in the past, there are examples where such orders were granted for relief from both current outstanding requests and future requests, within a limited period of time, where a public body has been able to meet the test set out in FOIPPA. See for example the decision in Law Society of British Columbia (Re), December 19, 1997, where the Law Society was permitted to ignore the respondent’s FOIPPA requests for a period of one year. Also, see the case of University of British Columbia (Re), [2006] B.C.I.P.C.D. No. 6, where the University was granted relief from responding to the respondent’s outstanding requests, in addition to relief from responding to future requests in excess of one open request at a time for the next two years, and was likewise granted relief from spending more than 50 hours per year in responding to requests from the respondent during this two-year period.

BC College of Physicians and Surgeons (Re), 2011 BCIPC 40

Also: Law Society of British Columbia (Re), December 19, 1997

Also: University of British Columbia (Re), [2006] B.C.I.P.C.D. No. 6