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Document
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MO-1427
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Institution/HIC
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District Municipality of Muskoka
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Summary
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NATURE OF THE APPEAL: This is an appeal from a decision of the District Municipality of Muskoka (the District), in response to a request made under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The request was for all records "in any way referring to, relating to, or possibly relating or referring to" the requester, that the requester had not already received, for the period between January 1, 1996 to date. The requester (now the appellant) described some of the records that would be included in its request, as well as naming certain individuals who would have the records sought. In its decision, the District refused to process the request, relying on sections 4(1)(b) and 20.1 of the Act and stating that "the head believes that since the [appellant] has an ongoing dispute with Muskoka and a variety of others, and that all records related to any such dispute are not privileged but are already in the possession of [the appellant], the request is therefore frivolous and vexatious". The appellant has clarified that it is not seeking access to any letters sent by it. The appellant appealed the decision. I sent a Notice of Inquiry to the District, initially, summarizing the facts and issues in the appeal and inviting its representations, which have been received and reviewed by me. I have determined that it is unnecessary to seek representations from the appellant, given my conclusions on the issues. The only issue raised by this appeal and addressed by this order is whether the request is frivolous or vexatious under section 4(1)(b) of the Act . CONCLUSION: I do not uphold the District's decision and order it to provide an access decision. DISCUSSION: FRIVOLOUS OR VEXATIOUS REQUEST The Act and Regulations provide institutions with a summary mechanism to deal with requests which an institution views as frivolous or vexatious. It has been said in previous orders that these legislative provisions "confer a significant discretionary power on institutions which can have serious implications on the ability of a requester to obtain information under the Act ", and that this power should not be exercised lightly: see Order M-850. Several provisions of the Act and Regulations are relevant to the issue of whether the request is frivolous or vexatious. These provisions read as follows: Section 4(1)(b) 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, ... 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. An institution invoking section 4(1)(b) of the Act has the burden of establishing that the request is either frivolous and/or vexatious: see Order M-850. The District submits that: the appellant is engaging in a pattern of conduct that amounts to an abuse of the right of access; its request is part of a pattern of conduct that would interfere with the operations of the District; its request is made in bad faith; and its request is made for a purpose other than to obtain access. It submits that all the activities of the appellant are designed for one purpose only, that is, to pressure the District into acceding to its position on a construction dispute matter. As background, the District describes how it advertised for tenders for the construction of a water treatment plant in Port Carling and modifications to a water treatment plant in Bala in 1999. The appellant's tender was accepted. The construction work commenced, but shortly thereafter, the District and the appellant began having disagreements over the project, culminating in or about November of 2000, when the appellant appears to have stopped work on the project. The appellant alleges that the District is in breach of the contract; it is the District's position that the appellant is in default. At the time of this order, there is, according to the District, extensive litigation outstanding in relation to the project. In its representations, the District has addressed the different components of section 5.1, but to a degree, the representations and evidence on one component overlap with that on another component. Although, below, I treat sections 5.1(a) and 5.1(b) separately, as well as different elements within those subsections, I have considered the applicability of all of the representations and evidence offered to all of the issues raised by these sections. Section 5.1(a) Pattern of conduct amounting to abuse of right of access In Order M-850, A
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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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May 01, 2001
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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