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P-1534

Document		P-1534


File #		P-9700134


Institution/HIC		Ontario Municipal Board


Summary		BACKGROUND: This appeal results from a longstanding dispute between the Ontario Municipal Board (the OMB) and the appellant. The appellant has been seeking access to "explanations and documents" dating back to April 1993 in respect of matters he brought before the OMB. The OMB previously advised the appellant, on a number of occasions, that he has been granted access to all records in what it classified as its "public files" relating to his involvement with the OMB. The appellant continues to believe that the OMB has not provided him with all responsive records. On February 24, 1997, in the absence of a formal request from the appellant, the OMB provided him with a number of records it had previously considered were not responsive (the "yellow sheets"). Yellow sheets are staff memoranda and related documentation that contain procedural communications about appeals before the OMB or other matters between members and/or staff, such as scheduling of hearing dates. They also include conversations with municipal officials, lawyers for the parties and the parties themselves. The OMB offered the explanation that these yellow sheets had up to that point not been considered part of its "public files", but due to a recent change in OMB policy they were now being made available. The appellant believed these records were incomplete and that this was indicative of the OMB's failure to provide all responsive records and evidence that further responsive records exist. As a result, the appellant submitted a formal request to the OMB under the Freedom of Information and Protection of Privacy Act (the Act ) for "all typed, handwritten, word processed or otherwise electronically made files, logs, memos, minutes, etc., whether in the public files or not, which make reference to [the appellant] and/or the matter(s) referred to in [his] files." He specified in his request that the OMB search "all files in the offices and storerooms, cupboards, closets, etc., of all members and staff of the [OMB] who have had business with these files", that they provide him with all records of meetings relating to the appellant between the various Chairs and members of the OMB and the files which have been kept by the OMB about him. The OMB denied the appellant's request pursuant to section 10(1)(b) of the Act . The OMB's decision letter stated, in part: The [OMB] has frequently, adequately and accurately replied to each of your requests for information, even for those not recorded in its files. It has explained the discrepancy in the status of the [OMB]'s files prior to 1995 and after that date when the "yellow sheets" and attached memoranda were placed on the [OMB]'s files. The [OMB] is of the opinion that your application for access to records which are already in your possession and which ... constitute the records in the custody and control of the [OMB] is both frivolous and vexatious. The appellant appealed this decision. After receiving the appeal, this office sent a Confirmation of Appeal/Notice of Inquiry (the COA/NOI) to the OMB. This notice indicated that the OMB has the preliminary onus of establishing that the request in question is frivolous and/or vexatious, and that the rules of procedural fairness require that the appellant be able to adequately respond to the case put forward by the institution. In particular, the COA/NOI set out this office's policy for processing these types of appeals which states, in part: To ensure procedural fairness, the decision maker assigned to the appeal will determine whether the appellant should have access to the points raised in the institution's representations in order to formulate his or her case. Should the decision maker decide that such access is required, he or she will determine the extent to which the institution's representations will be provided to the appellant and the format in which this communication will take place. In this case, once the representations of the OMB were received, it was determined that the appellant should have access to them in order to respond and a copy was provided to him by this office. The appellant submitted representations in reply. An individual contacted this office indicating that he was aware of this inquiry and requested the opportunity to provide representations. This request was granted and representations were received from him. I have reviewed these representations and determined that they are not relevant to the determination of whether the appellant's request is frivolous or vexatious, and I will not consider them further. After reviewing the appellant's representations, I decided that the OMB should be provided with a copy of the appellant's representations for the purposes of replying. The OMB submitted a detailed reply. I have considered all materials submitted by the parties in reaching my decision in this appeal. PRELIMINARY MATTERS: The appellant has raised several issues in his letter of appeal and his representations. They can be summarized as follows: 1. His current request relates to an original request dating back to 1993, which pre-dates the amendments to the Act requiring the payment of a request fee and an appeal fee. Therefore, he feels that the $5.00 request and $10.00 appeal fees he paid for the current request and appeal should be ordered refunded. 2. He asks me to obtain certain records from the OMB which he claims have not been made available to him (e.g OMB meeting minutes), and make a determination regarding access. 3. He indicates that he wants access to certain records referred to in the OMB's representations (e.g. legal opinions). 4. He asks this office to refer his allegations regarding the OMB's conduct to the office of the Solicitor General and/or the Ontario Provincial Police. 5. He wants me to order an award of costs. Items 1, 2 and 3


Legislation		FIPPA 27.1(1)(b) Section 27.1 (1)(a)


Subject Index		Frivolous or Vexatious Offences


Signed by		Tom Mitchinson


Published		Feb 25, 1998


Type		Order – Interim


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