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Document
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M-1071
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Institution/HIC
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City of Hamilton
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Summary
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NATURE OF THE APPEAL: The requester made a 19 part request to the City of Hamilton (the City) under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for information with respect to a specific property, a named company and a named individual. The City responded to parts 1-11 of the request. However, it advised the requester that parts 12-19 of the request were denied because they were frivolous and vexatious, as contemplated by section 4(1)(b) of the Act . The requester (now the appellant) appealed the City's decision. After receiving the appeal, this office sent a Confirmation of Appeal/Notice of Inquiry to the City. This notice indicated that the City has the preliminary onus of establishing that the request in question is either frivolous and/or vexatious. The City submitted representations in response to the notice. I have considered these representations in reaching my decision. DISCUSSION: FRIVOLOUS OR VEXATIOUS Several provisions of the Act and Regulations are relevant to the issue of whether the request is frivolous or vexatious. The provisions of the Act relating to "frivolous or vexatious" requests were added by the Savings and Restructuring Act, 1996 . Regulation 823, made under the Act , was amended shortly thereafter to add the provision reproduced below. These provisions read as follows: Section 4(1) of the Act : Every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless, ... (b) the head is of the opinion on reasonable grounds that the request for access is frivolous or vexatious. Section 20.1(1) of the Act : A head who refuses to give access to a record or a part of a record because the head is of the opinion that the request for access is frivolous or vexatious, shall state in the notice given under section 19, (a) that the request is refused because the head is of the opinion that the request is frivolous or vexatious; (b) the reasons for which the head is of the opinion that the request is frivolous or vexatious; and (c) that the person who made the request may appeal to the Commissioner under subsection 39(1) for a review of the decision. Section 5.1 of Regulation 823: A head of an institution that receives a request for access to a record or personal information shall conclude that the request 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. In its submissions, the City seems to rely on section 5.1(b) of the Regulation in that it states that parts 12-19 of the appellant's request was made in bad faith. However, the evidence and argument submitted by the City touches on all aspects of section 5.1. Therefore, I have considered both sections 5.1 (a) and (b) in reaching my decision. Section 5.1(a) The City submits that parts 12-19 of the appellant's request are an abuse of the right of access and that the request was made in bad faith and for a purpose other than to obtain access. It argues that the request is part of a pattern of conduct designed to burden the City's system of operation. The City states that it suspects that it received the request because the appellant lost title to the property named in his request through the application of the municipal tax sales statute by the City. The City takes the position that the present request, together with the correspondence to the City from the appellant generally and what it believes to be the litigious nature of the appellant, demonstrates a course of conduct on the part of the appellant that amounts to an abuse of the right of access or would interfere with the operations of the institution. It argues that the appellant has undertaken this course of conduct for the purpose of harassing the City at a time that he knew the City, in general, and the Freedom of Information Unit, in particular, were very busy. In Order M-850, Assistant Commissioner Tom Mitchinson commented on the meaning of "pattern of conduct" as follows: [I]n my view, a "pattern of conduct" requires recurring incidents of related or similar requests on the part of the requester (or with which the requester is connected in some material way). The meaning of "abuse of the right of access" was also discussed by Assistant Commissioner Mitchinson in Order M-850. He commented on this as follows: In determining what constitutes "an abuse of the right of access", I feel that the criteria established by Commissioner Tom Wright in Order M-618 [decided before the "frivolous or vexatious" amendments were added to the Act by the Savings and Restructuring Act, 1996 ] are a valuable starting point. Commissioner Wright found that the appellant in that case (who is not the same person as the appellant in this case) was abusing processes established under the Act . The Commissioner described in detail the factual
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Legislation
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MFIPPA
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4(1)(b)
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Section 20.1
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Subject Index
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Published
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Feb 03, 1998
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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