Access to Information Orders
Decision Information
NATURE OF THE APPEAL: Le Conseil scolaire public de district du Centre-Sud-Ouest (the Conseil) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for all records dealing with the hiring or appointment of three named individuals. The requester provided examples of the types of information he considered to be responsive to the request. The Conseil refused to respond to the request on the basis that it was frivolous and vexatious, and advised the requester accordingly. The requester (now the appellant) appealed the decision. Mediation was unsuccessful in resolving the appeal, so it was transferred to the Adjudication stage. I sent a Notice of Inquiry to the Conseil setting out the issues in the appeal and received representations in response. I determined that it was not necessary for me to seek representations from the appellant. DISCUSSION: Introduction Several provisions of the Act and Regulations are relevant to the issue of whether the request is frivolous or vexatious. These provisions read as follows: Section 4(1)(b) of the Act : Every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless, ... the head is of the opinion on reasonable grounds that the request for access is frivolous or vexatious. Section 20.1(1) of the Act : A head who refuses to give access to a record or a part of a record because the head is of the opinion that the request for access is frivolous or vexatious, shall state in the notice given under section 19, (a) that the request is refused because the head is of the opinion that the request is frivolous or vexatious; (b) the reasons for which the head is of the opinion that the request is frivolous or vexatious; and (c) that the person who made the request may appeal to the Commissioner under subsection 39(1) for a review of the decision. Section 5.1 of Regulation 823: A head of an institution that receives a request for access to a record or personal information shall conclude that the request is frivolous or vexatious if, (a) the head is of the opinion on reasonable grounds that the request is part of a pattern of conduct that amounts to an abuse of the right of access or would interfere with the operations of the institution; or (b) the head is of the opinion on reasonable grounds that the request is made in bad faith or for a purpose other than to obtain access. In Order M-850, I stated: In January 1996, the Legislature amended section 4 of the Act , thereby providing institutions with a summary mechanism to deal with requests which the institution views as frivolous or vexatious. These legislative provisions confer a significant discretionary power on institutions which can have serious implications on the ability of a requester to obtain information under the Act . In my view, this power should not be exercised lightly.
Section 42 of the Act places a burden on institutions to demonstrate the application of exemptions. It does not offer specific guidance on the burden of proof regarding decisions that a request is frivolous or vexatious. However, the general law is that the burden of proving an assertion falls on the party making the assertion. On this basis, I find that an institution invoking section 4(1)(b) of the Act has the burden of proof. Section 5(1)(a) - Pattern of conduct that amounts to an abuse of the right of access or would interfere with the operations of an institution The Conseil submits that the request is part of a pattern of conduct by the appellant to use the Act and the processes of this Office to harass, bother and batter a party adverse in interest in civil litigation, and is not in keeping with the spirit and purpose of the legislation. The Conseil also submits that the appellant has engaged in similar conduct with other institutions. The Conseil asserts that: As soon as [the requester] becomes involved in a dispute under a contract with a public institution covered by [the Act ], that institution starts to receive several access requests, of a varied nature for the purpose of harassing the [institution], expending the institution's resources to respond to the requests and deal with appeals from the requests, and widen the discovery process in litigation. In Order M-850, I commented on the meaning of "pattern of conduct" in section 5.1(a) of the Regulation, as follows: [I]n my view, a "pattern of conduct" requires recurring incidents of related or similar requests on the part of the requester (or with which the requester is connected in some material way). The Conseil argues that the appellant's request for the records relating to the three individuals, though contained in one paragraph, is actually seven separate "batched" requests. The Conseil refers to the wording of the request, which identifies that the appellant is seeking access to "all records dealing with the hiring or appointment of [the three named individuals]. Including without limitation
". The request then lists the information that would be included in these records, specifically such items as the job descriptions, the advertisements for positions, the list of those considered for the jobs, evaluation criteria and results, the members of the selection panel, and any declared conflict of interest made by those members. The Conseil also refers to a number of other "batched" requests received from the appellant. Although acknowledging that it has received only a total of six request letters from the appellant, in the Conseil's view, these six letters constitute 27 separate requests.
Decision Content
NATURE OF THE APPEAL:
Le Conseil scolaire public de district du Centre-Sud-Ouest (the Conseil) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for all records dealing with the hiring or appointment of three named individuals. The requester provided examples of the types of information he considered to be responsive to the request.
The Conseil refused to respond to the request on the basis that it was frivolous and vexatious, and advised the requester accordingly. The requester (now the appellant) appealed the decision.
Mediation was unsuccessful in resolving the appeal, so it was transferred to the Adjudication stage. I sent a Notice of Inquiry to the Conseil setting out the issues in the appeal and received representations in response. I determined that it was not necessary for me to seek representations from the appellant.
DISCUSSION:
Introduction
Several provisions of the Act and Regulations are relevant to the issue of whether the request is frivolous or vexatious. These provisions read as follows:
Section 4(1)(b) of the Act:
Every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless, ...
the head is of the opinion on reasonable grounds that the request for access is frivolous or vexatious.
Section 20.1(1) of the Act:
A head who refuses to give access to a record or a part of a record because the head is of the opinion that the request for access is frivolous or vexatious, shall state in the notice given under section 19,
(a) that the request is refused because the head is of the opinion that the request is frivolous or vexatious;
(b) the reasons for which the head is of the opinion that the request is frivolous or vexatious; and
(c) that the person who made the request may appeal to the Commissioner under subsection 39(1) for a review of the decision.
Section 5.1 of Regulation 823:
A head of an institution that receives a request for access to a record or personal information shall conclude that the request is frivolous or vexatious if,
(a) the head is of the opinion on reasonable grounds that the request is part of a pattern of conduct that amounts to an abuse of the right of access or would interfere with the operations of the institution; or
(b) the head is of the opinion on reasonable grounds that the request is made in bad faith or for a purpose other than to obtain access.
In Order M-850, I stated:
In January 1996, the Legislature amended section 4 of the Act, thereby providing institutions with a summary mechanism to deal with requests which the institution views as frivolous or vexatious. These legislative provisions confer a significant discretionary power on institutions which can have serious implications on the ability of a requester to obtain information under the Act. In my view, this power should not be exercised lightly.
…
Section 42 of the Act places a burden on institutions to demonstrate the application of exemptions. It does not offer specific guidance on the burden of proof regarding decisions that a request is frivolous or vexatious. However, the general law is that the burden of proving an assertion falls on the party making the assertion. On this basis, I find that an institution invoking section 4(1)(b) of the Act has the burden of proof.