Mediation did not resolve the appeal and it was transferred to the adjudication stage of the process.  I sent a Notice of Inquiry to the appellant and received representations in response.  I decided that it was not necessary to seek representations from the City or the original requester before issuing this order.

RECORDS AND ISSUES:

The records consist of:

•         75 pages of memorandum and other correspondence

•         Power point presentation pages 76 to 87

•         Transportation Impact Assessment – pages 88 to 253

•         Addendum Report – Transportation Impact Assessment – pages 254 -390

The issues are whether the above-noted records are exempt from disclosure under section 10(1) (third party information) and whether the request is frivolous or vexatious within the meaning of section 4(1), of the Act.

DISCUSSION:

IS THE REQUEST FRIVOLOUS OR VEXATIOUS?

The provisions to be considered in determining whether a request is frivolous or vexatious are sections 4(1)(b) and 20.1(1) of the Act and section 5.1 of Regulation 823 made under the Act.

Section 4(1)(b) of the Act specifies that every person has a right of access to a record or part of a record in the custody or under the control of an institution unless the head of an institution is of the opinion on reasonable grounds that the request for access is frivolous or vexatious.  The onus of establishing that an access request falls within these categories rests with the institution (Order M-850).

Sections 20.1(1)(a) and (b) of the Act go on to indicate that a head who refuses to provide access to a record because the request is frivolous or vexatious must state this position in his or her decision letter and provide reasons to support the opinion.

Sections 5.1(a) and (b) of Regulation 823 provide guidelines for determining whether a request is frivolous or vexatious.  They prescribe that a head shall conclude that a request for a record or personal information 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.

Based on my reading of sections 4(1)(b) and 20.1(1) of the Act and section 5.1 of Regulation 823 made under the Act, the issue of whether a request is frivolous or vexatious is one that can only be raised by an institution and not by an affected party.  Because the City did not raise the application of these sections as an issue, I find that the request cannot be found to be frivolous or vexatious.  I will now turn to the remaining issue in the appeal.

THIRD PARTY INFORMATION

The appellant also objected to disclosure of the records on the basis of the mandatory exemption under section 10(1) of the Act.  The appellant continued to maintain that the records ought to be withheld even though the City advised that the records were available for public viewing.  Because section 10(1) is designed to protect the confidential “informational assets” of businesses or other organizations that provide information to government institutions [Boeing Co. v. Ontario (Ministry of Economic Development and Trade), [2005] O.J. No. 2851 (Div. Ct.)], I asked the appellant to respond to the following question, in addition to the rest of the information and questions provided in the Notice of Inquiry:

The City has advised that the records are available for public viewing.  Accordingly, can the mandatory exemption at section 10 apply to the records?  [emphasis in original]

The appellant did not provide any representations to support his position that the records should be exempt from disclosure under section 10(1) of the Act.  The only harm described by the appellant are those which may arise from the on-going disputes between himself and the named company, and are entirely unrelated to the factors under section 10(1) that I am bound to consider.   I find it surprising, to say the least, that the appellant would make this claim and then provide no representations to support it. 

In the absence of persuasive representations, I see no reason to disturb the City’s decision.

ORDER:

I uphold the City’s decision to disclose the records.

Original signed by:                                                                        October 19, 2006                                               

Beverley Caddigan