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MO-1168-I

Document		MO-1168-I


Institution/HIC		Kawartha Pine Ridge District School Board


Summary		NATURE OF THE APPEAL: The appellant made a request to the English-Language Public District School Board No. 14 (now the Kawartha Pine Ridge District School Board) (the Board) under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The request was for a copy of the complete report dealing with consulting services regarding Employee Benefit Programs which was submitted to the Board at a meeting on April 16, 1998, as well as any supporting reports. The Board initially denied access to the requested records on the basis of section 52(3) and, in the alternative, sections 6(1)(b), 10(1) and 11(c), (d), (e) and (f). The appellant appealed this decision. Upon receipt of the Confirmation of Appeal, the Board notified this office that the head is of the opinion that the request is frivolous or vexatious pursuant to section 17(1.1) of the Act . The Board later contacted this office to indicate that it incorrectly cited section 17(1.1) and that it intended to refer to section 4(1)(b). The Board did not appear to comply with the requirements of section 20.1(1). However, the appellant was advised of the Board's position in the Mediator's Report which was sent out to the parties on September 2, 1998. I have decided to deal with this matter as a preliminary issue in the appeal. I sent a Notice of Inquiry to the Board. This notice indicated that the Board has the preliminary onus of establishing that the request in question is either frivolous 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. Therefore, the Board must establish a prima facie case, otherwise the claim fails. If it does, the appellant must be given an opportunity to make representations. The Board submitted representations. I have reviewed the Board's submissions to determine whether procedural fairness would require that the appellant be given an opportunity to provide representations. In view of my assessment of the Board's claim that the request is frivolous or vexatious, as reflected in this order, I decided that it would not be necessary to invite the appellant to submit representations. PRELIMINARY MATTERS: MEETING INVOLVING THE PARTIES AND THE COMMISSIONER'S OFFICE Prior to the issuance of the Notice of Inquiry, the Board asked for an opportunity to have all of the parties meet with the Commissioner's office to explore the issues of concern to the Board. I advised the Board that the Act provides that the parties involved in an inquiry are entitled to make representations to the Commissioner's office. I indicated further that it is the usual practice of this office to invite the parties to submit their representations in writing. I considered the Board's request for a meeting of the parties in order to determine whether the circumstances warranted variance with the usual procedures of this office. However, I determined that the usual written process was adequate in the circumstances. Therefore, I denied the Board's request. The Board has again raised this issue in its representations in response to the Notice of Inquiry. In this regard, the Board states: By virtue of the background of this matter, and due to the issues involving the intent as well as access to confidential information, we suggested that the parties should have an opportunity to meet with the Adjudication Review Officer to explore these issues. In other words, credibility may well be a significant issue in this matter. The issues noted above may not be determinable without the opportunity of exploring with [the appellant] the extent to which these issues apply. Representatives of the Board and the writer would be pleased to meet with you to explore these issues more fully. We would also be pleased to answer any questions you might have with respect to these particular submissions on the issue of vexatious. I have again considered the Board's request. I have also read the representations submitted by the Board on the issue under section 4(1)(b). I find the representations to be very detailed and pointed. The Board's reasons for advancing the application of section 4(1)(b) are clearly articulated. However, based on the arguments presented by the Board, and the manner in which I have interpreted the requirements for establishing that a request is frivolous and/or vexatious, I have concluded that it is not necessary to go any further and examine the appellant's motivation or actions in making this access request. Therefore, the Board's request for an in-person meeting involving the Commissioner's office and the parties is denied. INADEQUATE DECISION LETTER Sections 20.1(1)(a) and (b) of the Act provide 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. As I indicated above, the Board did not advise the appellant that it intended to deny access to the records because it considered the request to be frivolous or vexatious. This information was only communicated to the Mediator assigned to the file after the appellant had filed an appeal of the Board's original access decision. In acknowledging its failure to notify the appellant, the Board submits that: We would also note that these particular reasons were not included in the letter of June 10, 1998 from the Board to [the appellant]. However, at that time, the Board was not fully aware of the circumstances and, particularly, was not aware of the access to confidential information and the recent dealings with the media. As a result, we would submit that this should not be an impediment to the consideration of whether the request is vexatious. Fortunately for the Board, in the circumstances of this appeal, the issue was raised early enough in the process to allow the Mediator to include it in the Mediator's Report which was then sent to the parties. The Mediator's Report is designed to provide the parties with a summary of the status of an appeal following mediation. It outlines the issues which were raised by the parties, the manner in which any issues have been resolved and those which remain at issue. After this document is provided to the parties, they are given ten days to respond to the


Legislation		MFIPPA 4(1)(b) Section 20.1


Subject Index		Frivolous or Vexatious


Published		Nov 26, 1998


Type		Order – Interim


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