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M-864

Document		M-864


Institution/HIC		Fort Frances-Rainy River Board of Education


Summary		NATURE OF THE APPEAL: On May 10, 1996, the requester asked the Fort Frances-Rainy River Board ofEducation (the Board) to receive four categories of information under the MunicipalFreedom of Information and Protection of Privacy Act (the Act ). Therequester specifically sought access to: (1) The name of the law firm(s) used by the Board to obtain legal adviceor any other legal service and the amount paid to the firm(s) in 1995. (2) The number of buses that the Board leased or purchased in 1995 and1996 and a copy of the purchase or lease agreement for each bus. (3)The duties, salary and benefits of the Board's Transportation Officer. (4)A copy of the contract entered into with a named individual for thepurchase of a bus and the worksheet used to determine the value of thiscontract. While the appellant combined these requests in one letter, I find that hehas sought access to four separate pieces of information. On this basis, I willtreat his May 10, 1996 letter as comprising four separate access requests. In its decision letter, the Board indicated that it considered the requeststo form part of a pattern of conduct that amounted to an abuse of the right ofaccess and that the requests were made in bad faith. On this basis, the Boardinformed the requester that it viewed these requests as vexatious under section4(1) of the Act and that it would not be responding to them. On June 20, 1996, the requester wrote to the Board indicating that heintended to appeal its decision. At the same time, he filed a fifth requestfor information where he sought access to: (5)The exact route followed by a school bus driven by a named individual,the first pick up time, the time the pupils are delivered to school and thetotal meterage and expenses incurred for the 1995-96 time period. The Board did not respond to this request although it later advised theCommissioner's office that it also considered the request to be vexatious. Therequester (now the appellant) appealed the Board's decision. Following receipt of this appeal, the Commissioner's office sent a Notice ofInquiry to the Board. This notice indicated that the Board has the preliminaryonus of establishing that the requests in question are either frivolous and/orvexatious. The Board subsequently forwarded two sets of representations to theCommissioner's office which I have considered in reaching my decision in thisappeal. DISCUSSION: FRIVOLOUS OR VEXATIOUS REQUESTS The provisions which I must consider to determine whether the appellant'sfive requests are frivolous or vexatious are found in sections 4(1)(b) and20.1(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 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. The onus ofestablishing that an access request falls within these categories rests with theinstitution (Order M-850). Sections 20.1(1)(a) and (b) of the Act go on to indicate that a headwho refuses 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 regulations provide some guidelines fordefining the terms frivolous and vexatious. They prescribe 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, former Assistant Commissioner Tom Mitchinson observed thatthese legislative provisions confer a significant discretionary power oninstitutions which can have serious implications on the ability of a requesterto obtain information under the Act . He went on to express the viewthat this power should not be exercised lightly. I agree with this position. I will now consider whether the facts of this case fit into one or both ofthese definitions. Pattern of Conduct that Amounts to an Abuse of the Right of Access- Section 5.1(a) I will begin my analysis by reviewing the history of interaction between theappellant and the Board. In the 18-month period between January 1995 and June 1996, the appellantfiled a total of 15 requests with the Board. The appellant's first 10 requests were submitted in the period betweenJanuary and September 1995. These canvassed such topics as: the monies paidto bus drivers; the mileage travelled by the bus fleet; operating andmaintenance costs for the bus fleet; monies paid to private carrier companies;the criteria for awarding a particular bus contract; the monies recovered fromservicing First Nations sites; the value of bus contracts awarded in aparticular year and the details of a tender agreement to house the bus fleet. As noted previously, the appellant filed an additional four requests on May10, 1996 and a fifth on June 20, 1996. These are described more fully on pageone of my order. In most of the 15 requests, the appellant has sought information about theschool bus contracts which the Board has awarded. While the theme is similar,each request asks for different pieces of information. The Board indicates that, in 1995, the appellant's wife held a contract toprovide school bus services to the Board on a particular route, which shesubsequently chose not to renew. The appellant and his wife believe that thetendering process which the Board undertook for this contract was unfair. Theycontend that the successful bidder and the appellant's wife were subject todifferent costing formulas. The Board notes that, in September 1995, theappellant's wife initiated a legal proceeding against the Board relating to thecontract. The Board further submits that the appellant's current requests form part ofa pattern of conduct that amounts to an abuse of the right of access under the Act . It believes that the number of requests that the appellant hasfiled over the last 18 months has been excessive and that the appellant has notused the information received for a legitimate purpose. The Board also points out that the appellant's seven initial requests camein a pattern. They were filed every two weeks to be received on the date setfor the regularly scheduled Board meeting. The Board further notes that theserequests have sometimes involved large volumes of records. The Board thenstates that: During the past couple of years, this Board has reduced its administrationby 2 superintendents and [1.5


Legislation		MFIPPA 4(1)(b) Section 20.1


Subject Index		bad faith pattern of conduct


Published		Nov 26, 1996


Type		Order


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