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MO-1269

Document		MO-1269


Institution/HIC		Keewatin-Patricia District School Board


Summary		NATURE OF THE APPEAL: The appellant made a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) to the Keewatin-Patricia District School Board (the Board). The request was for access to copies of the severance packages awarded to two former Directors of Education by the Board. The Board denied access to the records stating that the request was frivolous and vexatious and was made in bad faith. The Board further indicated that should the frivolous and vexatious/bad faith decision not be upheld, access to the records at issue was also being denied pursuant to the following exemptions contained in the Act : closed meeting - section 6(1)(b); economic and other interests - sections 11(c)and (d); solicitor-client privilege - section 12; and invasion of privacy - section 14(1). The appellant appealed the Board's decision, indicating that the request was not frivolous or vexatious and was not submitted in bad faith. He also submitted that the exemptions claimed did not apply. A Notice of Inquiry was provided to the Board, the appellant and to the two former Directors of Education (the affected persons). Representations were received from all of the parties. The submissions of the Board and the appellant with respect to the frivolous and vexatious issue were exchanged between those two parties. They each made additional submissions on this issue, having had the opportunity to review the arguments of the other. The appellant also argues that there exists a public interest in the disclosure of the records, as contemplated by section 16 of the Act . RECORDS: The records at issue consist of the severance agreements for the two former Directors of Education. PRELIMINARY ISSUE: FRIVOLOUS AND VEXATIOUS The provisions which I must consider to determine whether the appellant's request is frivolous or vexatious are in 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 state 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 some 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. I will now consider whether the facts of this case fit within the above provisions. Background to the request The request was originally received in October 1998 on behalf of two individuals, the appellant, who was the local President of the Ontario Public School Teachers Federation (OPSTF), and another person, who was at the time the local President of the Ontario Secondary Schools Teachers Federation (OSSTF). At the time the request was made, the Board was involved in collective bargaining negotiations with its teachers unions, represented at the bargaining table by the appellant and the OSSTF President. The Board denied access to the requested information and the requesters appealed that decision to the Commissioner's office. Prior to a decision being rendered by this office, I was advised by the appellant that the appeal was being withdrawn as a result of an agreement reached with the Board during their negotiations. Accordingly, no decision was rendered with respect to the Board's decision to deny access to the records at that time. Shortly thereafter, the Board received another request for the identical information from the appellant personally, as opposed to in his capacity as OPSTF President. Again, the Board denied access to the requested information and the appellant appealed that decision to this office. The Board's Position The Board submits that the request is part of a pattern of conduct that amounts to an abuse of the right of access and may interfere with the operations of the institution, as contemplated by section 5.1(a) of Regulation 823. It argues that the appellant has made two requests for the same information within a period of several months, without any reasonable grounds. It states that the purpose of the request is not legitimate and was made solely to harass the Board. Finally, the Board suggests that the appellant manipulated the settlement with the Board under which he and the OSSTF President agreed to withdraw their access request "knowing full well that he would proceed to request the same information by different means, in his personal capacity." It concludes this portion of its submissions by arguing that the appellant has no legitimate interest in the records and that he has misrepresented his intentions and mislead the Board. Further the Board relies on the decision in Order M-850 as the basis for its contention that the request was made in bad faith. It submits that by not abiding by the agreement to withdraw the original request and by resubmitting it in his personal capacity, the appellant has acted in bad faith. The Appellant's Position The appellant submits that his original request was withdrawn following the successful resolution of several key items in the collective bargaining between the Board and its elementary school teachers, who were represented by the Elementary Teachers Federation


Legislation		MFIPPA 4(1)(b) 6(1)(b) Section 20.1


Subject Index		Frivolous or Vexatious in camera/closed


Published		Jan 21, 2000


Type		Order


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