Access to Information Orders
Decision Information
The Regional Municipality of Peel refused to process a request for access to records on the basis that it was frivolous or vexatious under section 4(1)(b) of the Act. The adjudicator upheld decision dismissing appeal; however, the appellant was provided conditions in which they could possibly re-activate the appeal.
Decision Content
NATURE OF THE APPEAL:
This is an appeal from a decision of the Regional Municipality of Peel (the Region), made under the Municipal Freedom of Information and Protection of Privacy Act (the Act). In its decision, the Region refused to process a request for access to records on the basis that it was frivolous or vexatious under section 4(1)(b) of the Act.
The request was for access to records which disclose:
“the participation and input of, and by, each of Peel Staff in the selection and decision process to specify or select the [named company’s] product over other products available to perform the function of this equipment.
Comparison performed with other products available from other sources to perform the function of this product, including tenders and/or requests for proposals.
Any cost or price comparisons of the product dealing with competitors or with past projects where the [named company’s] products were used in a similar solution or function.
Any cost or price comparisons of the product dealing with competitors or with past projects where the [named company’s] products were used in a similar solution or function.
Any cost or price comparisons of the [named company’s] product compared with other similar installations for other municipalities or similar projects.”
The company named in the request was a subcontractor to the requester in a construction project for the Region.
The requester (now the appellant) appealed the decision of the Region. As mediation did not result in a resolution of the appeal, it was referred to me for adjudication.
The named appellant is a construction company, represented in this and other proceedings by its president. As neither party distinguished in any way between the interests of the company and of its president throughout the request and appeal, and the president describes himself in correspondence as the “requester”, I will refer to the president as the “appellant”.
I sent a Notice of Inquiry to the Region, initially, inviting it to provide representations on the facts and issues raised by the appeal. The Region’s representations, with the exception of certain confidential portions, were then sent to the appellant along with the Notice, and he was also invited to submit representations. After receiving the appellant’s representations, I invited him to submit supplementary representations on a particular aspect of the issues, which I subsequently received.
The issue before me is whether the appellant’s request is frivolous or vexatious within the meaning of section 4(1)(b).
FRIVOLOUS OR VEXATIOUS REQUEST
General Principles
Section 4(1)(b) reads:
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 5.1 of Regulation 823 under the Act elaborates on the meaning of the terms “frivolous” and “vexatious”:
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.
Section 4(1)(b) provides institutions with a summary mechanism to deal with frivolous or vexatious requests. This discretionary power can have serious implications on the ability of a requester to obtain information under the Act, and therefore it should not be exercised lightly [Order M-850].
An institution has the burden of proof to substantiate its decision to declare a request to be frivolous or vexatious [Order M-850].
The Region takes the position that the request is part of a pattern of conduct that amounts to an abuse of the right of access or would interfere with its operations, and that the request is made in bad faith or for a purpose other than to obtain access.
Background to the request
In the Region’s representations, it describes the history of its relationship with the appellant. Over the past some four years, the appellant’s company entered into contracts with the Region to perform at least three construction projects. The Region states that this company’s participation on two of these projects was terminated prematurely due to its failure to complete. Court actions have been commenced by several subcontractors including the one named in the request.
According to the Region, the appellant has advanced several monetary claims against the Region arising out of these projects, which have been reviewed and rejected by the Region’s staff. It states that the appellant has threatened the Region with legal action should these claims not be satisfied to his satisfaction. The Region states that it has been in contemplation of litigation with respect to the appellant’s company since at least January, 2002.
The appellant objects to the Region’s characterization of the background facts, describing them as “generally false and misstated half-truths in order to deliver misinformation to the Commission or other readers.” He provided evidence which he submits prove the falsity of the Region’s assertions. It is not necessary for me to review the appellant’s objections in detail. I am satisfied that the appellant’s descriptions of the Region’s representations are not borne out. On certain matters, there appear to be genuine differences of opinion which the appellant has chosen to portray as examples of malicious misrepresentations on the part of the Region. On other matters, I am not persuaded that the appellant’s view of the facts is supported by the evidence. I am persuaded that the Region’s description of the background facts is substantially correct.
Whatever the differences between the Region and the appellant, it is not contested that there is an ongoing dispute between them over payment for certain construction projects, which pre-dates this request. The Region has outlined the basis for its position in correspondence submitted with its representations. For his part, the appellant accuses the Region, among other things, of “pilferage” of his holdback money.
It is evident from the representations that the relationship between the Region and the appellant is highly adversarial. The appellant has been very aggressive in pursuing his claims against the Region. Although it does not appear that he has commenced litigation, the representations are replete with instances where he accuses the Region’s staff of “tricking” him, stonewalling, misleading Council, unethical and improper conduct, and illicit conduct.
The correspondence submitted with the Region’s representations indicates that the appellant was asked on a number of occasions to cease and desist from any direct contact with its staff both at their workplaces and at their homes. The Region describes voluminous correspondence including “near daily” email messages from the appellant to its staff.
The appellant does not deny that he has recorded telephone conversations with the Region’s staff without their permission. He states that such a practice is legitimate and lawful and that there is no requirement, legal, ethical or otherwise, to advise a person that a telephone conversation is being recorded.
On May 20, 2003, a few weeks before this request was submitted, the appellant sent an email message to a member of the Region’s staff, which stated:
Subject: You are destroying my family
I will do likewise.
Even after the above email prompted the Region’s Senior Legal Counsel to repeat the request to cease communications to the Region’s staff, the appellant sent the same individual a further message indicating that he would call the individual at home to discuss matters further and, “if necessary…drop by and speak to you in person.” He also asked, if this individual had been advised not to deal with him, to be provided with the home address and telephone number of the Region’s Chief Administrative Officer.
Other requests made by the appellant
In addition to the above background are a number of requests under the Act made by the appellant. The Region states that between October, 2002 and February, 2004, after the monetary disputes with the appellant began, the appellant submitted eleven requests for access to records (the appellant states that there are only 10). These requests are described in the Region’s representations. The appellant takes issue with the descriptions provided by the Region, alleging that they are “miswritten and do not record accurately the substance of each request.” He also asks that if the description is relevant to my inquiry, the actual request be referred to, and submits some documentation to support his position. As most of these requests resulted in appeals to this office, which in turn were described in Mediator’s Reports, I was able to review the descriptions of the requests contained in these Reports. I am satisfied that the Region has accurately described the requests submitted by the appellant. Based on the Region’s representations and these Mediator’s Reports, the requests submitted by the appellant between October, 2002 and February, 2004 can be described as follows:
October 2, 2002
1. copies of all correspondence for contract WPCP Primary Treatment Expansion, Project number 91-2929 excluding records which the appellant had already received (previously address or copied to him) during its performance of the contract, between the Region of Peel and [named firm] and [named individual], his superiors and subordinates;
2. records regarding the installation of uni-flanges, including communications with OCWA;
3. records regarding the late start of the job and issuance of the letter to commence;
4. records regarding the labour and material payment bond premiums;
5. records regarding the winter shut down;
6. records regarding the maintenance holdback;
7. records regarding the extension of the contract time;
8. copies of the [named firm] daily job diaries;
9. copies of the original engineering agreement including the portions which show the original engineering and supervision contract amounts for the:
a. Clarkson WPCP Primary Treatment Expansion – Project 91-2920;
b. South Peel Water Supply System Emergency Stand-by Power Facilities, Project 99-1980; contracts 1-4; and
c. East Brampton Reservoir Expansion Project 99-1910.
10. Records regarding additional engineering fees which includes approval, explanations and justifications for each additional fee for the
a. Clarkson WPCP Primary Treatment Expansion – Project 91-2920;
b. South Peel Water Supply System Emergency Stand-by Power Facilities, Project 99-1980; contracts 1-4; and
c. East Brampton Reservoir Expansion Project 99-1910.