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M-906

Document		M-906


Institution/HIC		City of Elliot Lake


Summary		NATURE OF THE APPEAL: The appellant submitted a 56-part request under the Municipal Freedom ofInformation and Protection of Privacy Act (the Act ) to the City ofElliot Lake (the City). The request pertained to several land transactionsinvolving the City. The City responded by letter, and indicated that the "head" (inthis case, the City Council) had decided to refuse to grant access. The Cityexplained that this was done because, in Council's opinion: ... the request is frivolous and vexatious given [the appellant's] patternof conduct, specifically, unsuccessful appeals under the Rental HousingProtection Act, the submission of complaints to and subsequent investigation bythe Ministry of Municipal Affairs and Housing, the submission of complaints toand subsequent investigation by local Police, a recent unsuccessful court actionto quash certain resolutions and by-laws of the Municipality, and for otherreasons. The appellant wrote to this office to appeal the City's decision. After receiving the appeal, this office sent a Confirmation of Appeal/Noticeof Inquiry to the City. This notice indicated that the City has the preliminaryonus of establishing that the request in question is either frivolous and/orvexatious, and that the rules of procedural fairness require that the appellantbe able to adequately respond to the case put forward by the institution. The City submitted representations. I reviewed the City's representations,including a supplementary submission relating to the police investigation, todetermine whether procedural fairness would require that the appellant be givenan opportunity to provide representations. In view of my assessment of theCity's claim that the request is frivolous or vexatious, as reflected in thisorder, I decided that it would not be necessary to invite the appellant tosubmit representations. DISCUSSION: FRIVOLOUS OR VEXATIOUS REQUEST Several provisions of the Act and of Regulation 823, made under the Act (the Regulation), are relevant to this issue. The provisions of the Act relating to "frivolous or vexatious" requests were addedby the Savings and Restructuring Act, 1996 . At the same time, theRegulation was amended to add sections 5.1(a) and (b), reproduced below. Section 4(1)(b) of the Act specifies that every person has a rightof access to a record or part of a record in the custody or under the control ofan institution unless the head of an institution is of the opinion on reasonablegrounds that the request for access is frivolous or vexatious. Sections 20.1(1)(a) and (b) of the Act indicate that a head whorefuses to provide access to a record because the request is frivolous orvexatious, must state this position in his or her decision letter and providereasons to support the opinion. Sections 5.1(a) and (b) of the Regulation provide some guidelines fordefining "frivolous or vexatious". They indicate that a head shallconclude that a request for a record or personal information is frivolous orvexatious if: (a)the head is of the opinion on reasonable grounds that the request ispart of a pattern of conduct that amounts to an abuse of the right of access orwould interfere with the operations of the institution; or (b)the head is of the opinion on reasonable grounds that the request ismade in bad faith or for a purpose other than to obtain access. In Order M-850, in his preliminary discussion of these provisions, formerAssistant Commissioner Tom Mitchinson made the following observations, withwhich I agree: These legislative provisions confer a significant discretionary power oninstitutions which can have serious implications on the ability of a requesterto obtain information under the Act . In my view, this power should notbe exercised lightly. On appeal, the ultimate burden of demonstrating that there are reasonablegrounds for concluding that the request was frivolous or vexatious rests withthe institution, in this case the City (Orders M-850 and M-860). The City's representations refer to three grounds, which derive from thelanguage of sections 5.1(a) and (b) of the Regulation, as the basis for its viewthat the request is frivolous or vexatious. The thrust of these submissions maybe summarized as follows: (1)the request is part of a pattern of conduct that amounts to an abuse ofthe right of access (section 5.1(a)); (2)the processing of the request to date and the time required to clarifythe request and locate the documents would interfere with the operations of theinstitution (section 5.1(a)); (3)the request was not made for the purpose of obtaining access, but forthe purpose of finding documentation to reinforce the appellant's course ofaction against the City (section 5.1(b)). I will deal with each of these grounds separately. Pattern of Conduct that Amounts to an Abuse of the Right of Access In this regard, the City's representations refer to a number of activitiesundertaken by the appellant as a result of his belief that the City behavedimproperly in relation to a series of land transactions. These activities areessentially the ones outlined in the quotation from the City's response to therequest which appears at the beginning of this order -- i.e. making complaintsto the Ministry of Municipal Affairs and Housing and the police, and undertakinglitigation. In a supplementary submission, the City indicates that the policewill not be proceeding with any prosecutions as a result of their investigationof the land transactions, and encloses a press release by the police confirmingthis to be the case. In addition, the City points to two previous requests that the appellantsubmitted under the Act . In Order M-850, former Assistant Commissioner Mitchinson defined the term "patternof conduct". He stated that, for such a pattern to exist, one must find "recurringincidents of related or similar requests on the part of therequester (or with which the requester is connected in some material way)"[emphasis added]. I agree with this approach and adopt it for the purposes ofthis order. In my view, the appellant's complaints and litigation are not part of a "patternof conduct" as defined in Order M-850 because they are unrelated to accessunder the Act , and are not "recurring incidents of related orsimilar requests". They may be relevant to whether a request is submitted "fora purpose other than to obtain access" under section 5.1(b) of theRegulation and I will refer to them again in that context, below. In this case, the evidence before me discloses only two previous requests bythe appellant. These requests relate to some of the land transactions referredto in the present request. However, in my view, it is not the intent of the "frivolousor vexatious" provisions of the Act and Regulation to prohibit anindividual from submitting several requests about a matter. Moreover, it isapparent from


Legislation		MFIPPA 4(1)(b) Section 20.1


Subject Index		interfere with the operations of the institution purpose other than to obtain access


Published		Mar 07, 1997


Type		Order


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