Bigger Than Billboards
The province has ordered the City of Toronto to stop stonewalling in the face of freedom of information requests about allegedly illegal billboards.
IllegalSigns.ca—”our hobby is destroying illegal billboards through the rule of law”—submitted a series of requests asking the City to release information about certain billboards.
The City’s Corporate Access and Privacy Unit balked. After receiving over 600 requests from the group in 2006—12% of all requests filed in the City—and after processing over half of them, it decided that the latest batch of requests were “frivolous or vexatious” and could thus be disregarded.
Among the reasons for the City’s decision? Illegal Signs was using the information in order to criticize the City for its lax enforcement of existing billboard laws. The City’s argument, if accepted, would have set a disastrous precedent for journalists, bloggers, and ordinary citizens throughout Toronto: is criticism of public officials grounds for being deemed frivolous or vexatious? All of a sudden, this became much bigger than billboards.
Illegal Signs appealed the City’s decision to Ontario’s Information and Privacy Commissioner. It won—and deservedly so. Our point-by-point analysis of the ruling continues below the fold.
The law states that a public institution must grant a freedom of information request unless an exception can be shown. And, when you think about it, that’s the way it should be: public information should generally be accessible to interested parties upon request unless there are compelling reasons to withhold it—personal privacy, national security, and so on.
The exception that the City tried to argue was that the requests were frivolous or vexatious. Again, it’s a pretty reasonable exception. There are people out there who file nonsensical complaints about all sorts of things, and public institutions have to be able to focus on what’s important while filtering out the stuff that’s absurd.
Where it gets murky is where an institution deems a valid request to be frivolous or vexatious. The law states that a request is frivolous or vexatious if it:
(1) is part of a pattern of conduct that amounts to an abuse of the right of access;
(2) is part of a pattern of conduct that would interfere with the operations of the institution;
(3) is made in bad faith; or
(4) is made for a purpose other than to obtain access.
In its ruling [PDF], the IPC held that the City failed to demonstrate that any of these grounds existed with respect to the requests by Illegal Signs. Here’s our point-by-point recap:
(1) Whether the request was part of a pattern of conduct that amounts to an abuse of the right of access
There are two legs to this test.
The first leg wasn’t really in question. Illegal Signs engages in a “pattern of conduct.” That’s what the group (like most activist groups) does—it requests information about billboards that it deems to be questionable, assesses it, and asks the City to investigate where appropriate.
The second leg was the key battlefield. To find that conduct rises to the level of “abuse,” four factors need to be weighed: the number of requests; the nature and scope of the requests; the timing of the requests; and the purpose of the requests.
Of these four factors, the only one where the City eked out a victory was in the number of requests. The IPC agreed with the City that Illegal Signs had filed a lot of requests (600+), although it acknowledged the viewpoint that there were over 4,000 billboards in the City and that approximately 2,000 might be illegal.
The City lost on all three other factors.
With respect to the nature and scope of the requests, the IPC ruled that the requests were neither “broad and varied in nature” (i.e. Illegal Signs was not conducting a fishing expedition) nor “unusually detailed or comprehensive” (i.e. Illegal Signs was not asking the City to go into too much detail). In other words, like Goldilocks, the requests of Illegal Signs were just right.
With respect to the timing of the requests, the IPC heard no evidence that Illegal Signs had timed its requests in such a way as to abuse the access to information system.
With respect to the purpose of the requests, the IPC accepted that Illegal Signs had reasonable and legitimate reasons for requesting the information that it was seeking to access, namely to assess the possible illegality of billboards in Toronto and to file complaints accordingly.
The IPC concluded its analysis of this part of its ruling by finding that only the number of requests might be just cause for deciding that Illegal Signs was acting a frivolous or vexatious way, by weighing that against the countervailing factors, and by concluding that, on balance, Illegal Signs was not acting in a frivolous or vexatious way.
(2) Whether the requests were part of a pattern of conduct that would interfere with the operations of the institution
Again, two legs to the test, and again, the first leg—that Illegal Signs engages in a “pattern of conduct”—isn’t really in dispute.
The second leg was considered but rejected. The IPC acknowledged that the number of requests was significant but doubted that they interfered with the City’s operations, noting that Toronto was a large city with a large government (and thus was expected to be able to deal with a higher volume of requests than a small town) and that the City has been able to fulfill almost all requests to date promptly and within budget.
The IPC also noted that the City could access various cost recovery mechanisms, as allowed under law, to help it mitigate or even avoid the administrative burden of fulfilling these requests.
(3) Whether the requests were made in bad faith
The IPC considered this argument because it thought that the City implicitly alleged bad faith on the part of Illegal Signs, even if the City did not say so outright.
Accepting that “bad faith” means acting dishonestly, with furtive design, or with ill will, the IPC rejected any notion that Illegal Signs was acting in bad faith, noting that it had a genuine purpose in making the information requests.
As for the suggestion that “bad faith” encompassed public criticism, the IPC completely rejected the link between the two. In a section of the ruling worth repeating:
In my view … the requests made by the appellant [Rami Tabello on behalf of Illegal Signs] were made for a genuine purpose. The appellant is involved in an organization that investigates whether certain billboards posted in the City are illegal. Only by examining City records obtained through access to information procedures can the appellant determine whether or not a billboard is illegal and, if so, subsequently file a legitimate complaint. I cannot agree that the appellant’s reasons for seeking access to the information he requests or the uses to which he puts that information once he receives it are either illegitimate or dishonest, however disadvantageous they may appear to the City.
(4) Whether the requests were made for a purpose other than to obtain access
Finally, the IPC turned its attention to whether Illegal Signs was making information requests for a purpose other than to obtain access. Here, it borrowed from earlier administrative rulings, which distinguished between, on the one hand, making a request for the purpose of obtaining access (e.g. “tell me about this possibly illegal sign”) and, on the other hand, intending to assess the information so received for another purpose (e.g. “the existence of this illegal sign suggests that the City isn’t enforcing its sign by-law”).
A common-sense analysis suggests that this is distinction is correctly made: the ideal of government accountability would be frustrated if people could only ask for information that they promised to do nothing further with. Provided that your purpose in making an information request is reasonable and legitimate, what you do with it afterwards is not truly relevant to the legal analysis of “frivolous or vexatious.”
In many ways, this ruling is less about billboards and more about freedom of information—and specifically, whether public criticism is grounds for rejecting someone who acts in good faith to request public information.
And so the victory of Illegal Signs over the City is a good one for those concerned about freedom of information and government accountability. Illegal Signs is free to continue its assessment of the illegality of some of Toronto’s billboards, and we—all of us: journalists, bloggers, and ordinary citizens alike—are free to request information, secure in the knowledge that we won’t be denied it on the basis that we might use it to criticize the powers that be.
With additional reporting from Jonathan Goldsbie.