Access to Information Orders
Decision Information
NATURE OF THE APPEAL: Le Conseil scolaire 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 access to: copies of all invoices rendered by [a named law firm] and payments made to it in 1998, 1999, 2000 and 2001 to date. copies of all time dockets and receipts for disbursements in support of the invoices and payments noted in item 1. The Conseil responded by refusing to process the request, claiming that, pursuant to sections 4(1)(b) and 20.1(1) of the Act , the request was frivolous and vexatious. The requester, now the appellant, appealed the Conseil's decision. Mediation of the appeal was not successful and the matter was moved to the Adjudication stage of the process. I provided the Conseil with a Notice of Inquiry seeking its submissions on the issues identified in this appeal, initially. The Conseil submitted representations which were shared, in their entirety, with the appellant. The appellant, in turn, was also invited to make representations and did so. The appellant's submissions were shared with the Conseil, which then made additional reply representations. On October 17, 2001, Assistant Commissioner Tom Mitchinson issued Order MO-1477, involving the same appellant and the Conseil, which addressed the issue of the application of sections 4(1)(b) and 20.1(1) of the Act and section 5.1 of Regulation 823 to another request. More recently, on January 31, 2002, Adjudicator Laurel Cropley issued Order MO-1505 which again examined the application of sections 4(1)(b) and 20.1(1) to a further request involving the same parties. I will rely on the findings and conclusions reached in those decisions in my determination of the issues in the present appeal. I note that the representations made by the Conseil in Order MO-1505 are essentially the same as those submitted in the present appeal. 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, Assistant Commissioner Mitchinson 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) o
Decision Content
NATURE OF THE APPEAL:
Le Conseil scolaire 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 access to:
1. copies of all invoices rendered by [a named law firm] and payments made to it in 1998, 1999, 2000 and 2001 to date.
2. copies of all time dockets and receipts for disbursements in support of the invoices and payments noted in item 1.
The Conseil responded by refusing to process the request, claiming that, pursuant to sections 4(1)(b) and 20.1(1) of the Act, the request was frivolous and vexatious. The requester, now the appellant, appealed the Conseil’s decision. Mediation of the appeal was not successful and the matter was moved to the Adjudication stage of the process.
I provided the Conseil with a Notice of Inquiry seeking its submissions on the issues identified in this appeal, initially. The Conseil submitted representations which were shared, in their entirety, with the appellant. The appellant, in turn, was also invited to make representations and did so. The appellant’s submissions were shared with the Conseil, which then made additional reply representations.
On October 17, 2001, Assistant Commissioner Tom Mitchinson issued Order MO-1477, involving the same appellant and the Conseil, which addressed the issue of the application of sections 4(1)(b) and 20.1(1) of the Act and section 5.1 of Regulation 823 to another request. More recently, on January 31, 2002, Adjudicator Laurel Cropley issued Order MO-1505 which again examined the application of sections 4(1)(b) and 20.1(1) to a further request involving the same parties. I will rely on the findings and conclusions reached in those decisions in my determination of the issues in the present appeal. I note that the representations made by the Conseil in Order MO-1505 are essentially the same as those submitted in the present appeal.
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, Assistant Commissioner Mitchinson 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