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Information and Privacy Commission/Ont. (IPC) ORDER MO-1519
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Table of sections:OPENING COMMENTS - About the IPC and its Orders Generally ORDER MO-1519 - My Comments about this Order ORDER MO-1519 & Nature of the Appeal CONCLUSION BACKGROUND Past history of requests under the Act Order M-947 Order M-716 Recent history of requests under the Act The current request and appeal PRELIMINARY MATTERS & The Appellant's Representations BIAS THE CHARTER DISCUSSION - FRIVOLOUS OR VEXATIOUS The City's position The appellant's position Section 5.1(a) Abuse of the right of access CONCLUSION ORDER
The following comments are made under the full protection of all the Rights and Freedoms to free speech that Canadians have, by way of the Charter and all other supporting Acts, common law, etc., to express political opinions, political observations (& of human nature in general) and comment on their government, at all levels and in whatever form they take, during an election or otherwise. This should also be considered a victims statement. The following facts are further reasons why the writer should be entitled to freedom of expression without persecution; I am a poor writer who can't afford a secretary or proof-reader (especially with no hope of a lawyer to proof-read), who is under a heavy workload to try and keep up with paid bureaucrats and who has out performed City staff for the benefit of the Cawthra Bush & community in general in the past, that the only way to overcome the common government tactic of trying to burn out people, groups and their volunteers who oppose government (plans & actions) is to do the best I can, as fast as I can and as honestly as I can. And if that is not good enough for you, then fund the cost to do this work to whatever standard you can afford!
Order MO-1519 - General Comments (there are a lot more to come); There is so much wrong with this Order that I would be writing a list of its errors, flaws and out-right falsehoods, at least as long as it is. The time for that is not handy so I will hit the highlights. The most single important point is that 12 letters from the community, taxpayers and members of the Friends of the Cawthra Bush & Greater Mississauga Area (FCB) and The Cawthra Ratepayers' and Residents' Association (CRRA), plus one later on that was misplaced, for a total of 13 letters, noting how we needed to make FOI requests. That it was our main tool for trying to save the Cawthra Bush, a Provincially Significant Wetlands Complex, an Old-growth urban forest which is also home to Jefferson Salamander, declared by the Canadian government to be a threatened species. Just to note some of its worthy features. Also included was the cover letter for a package of petitions, noting that 1,305, plus had been delivered to the City of MIssissauga. That number represents only one of our petition or form letter campaigns, total numbers are much higher. However, the writer of this Order, Laurel Cropley, dismisses them all by simply saying "not relevant to the specific issues on appeal" and issuing another Order to end my FOI requests for a year, upholding M-947 which is being used by the City to end the rest of the community access to City records, imposes far harsher conditions on me and to make things even worse, due to the poor wording she used the City extended this Order to deny me access to City staff regarding non-FOI services! Remember that I am the main spokesperson for the FCB and CRRA and I make the FOI requests as I know more about City records then just about everyone else. These Orders have effectively killed our groups by denying us the life blood of accurate government records to participate in local government decision making! Was that what the FOI Act was created for? For Laurel Cropley to say "not relevant" to this Appeal or consider the consequences of her actions on the community is what I call an attack on the intent and spirit of the FOI Act. The main reason I say that is the IPC has noted in a number of its Orders that special consideration be given to providing record to groups that service the community, the public interest, groups that disseminate records to enhance public & Democratic participation as well as access government records that can relate to the public's safety. All of which apply here but she did not give proper consideration to that argument. In terms of public safety, the records that the City creates about me, as I try and carry out my duties as the Leader of the FCB & CRRA, get wrongly labelled as just personal records. I would need access to these records in order to inform other members how dangerous it is for them to be active in our groups as City staff would use it false records about me & IPC Orders like this one to justify further attacks on members/supporters and/or file false reports about who started it and/or their conduct. The City can make its slanderous states about me (or other member of our groups), public by way of IPC Orders. There by doing the City's political dirty work and low legal liability to itself. It also, protects politicians from being exposed as those who would allow such things to happen, despite the evidence. The voice of the community begging for mercy is for all intents and purposes ignored, as was the IPC's own past rulings about the value of grassroots groups to the community. The City's official story is that I act alone and the City will not recognize or deal with our groups. This is a political agenda that is also being carried out by the IPC, as far as I am concerned. If the IPC had made a serious effort to consider the existence of the FCB & CRRA, the City's past actions at shutting us out of the process and how the IPC Order affects us, then how in the name of the decency and Democracy, that so many Canadians died for, could they have ever signed Order MO-1519? I am left feeling that taxpayers letters, like my own submissions, humble as they are, were just used for toilet paper by the IPC. Laurel Cropley, makes many references to to the Orders that deal with City computerized filling system, called ARIS but makes no reference to the Canadian Environmental Law Association submission and their finding after reviewing the City of Mississauga's statements "We submit that this claim, on the part of the City, lacks credibility." Is that because including the evaluation of another lawyer that demonstrated the City's statements were not factual or believable to a reasonably intelligent person, it would weaken the position that she, the IPC and the City, had taken against me, while giving mine legitimacy? I think so. The hour is late and I need to do other things, so when you read the rest of this Order just remember this. If a bureaucratic was to set out to defame a person to the point that community would turn its back on him, which would serve the politicians political agenda, would they not write something like this?
Lack of money to buy justice & respect and nothing else is reason for what is in this Order.
ORDER MO-1519 Appeal MA-010057-1 City of Mississauga NATURE OF THE APPEAL: The appellant submitted a request under the Municipal Freedom of Information and
Protection of Privacy Act (the Act) to the City of Mississauga (the City) for access to
records containing his personal information, including records that the City would or could
use to ban him from City property. The City refused access to the requested information in accordance with section 20.1 of the
Act stating that in its view, the appellant's request was vexatious as contemplated by section
4(1)(b) of the Act. The appellant appealed this decision. During mediation of the appeal, the appellant indicated that he believed the Freedom of
Information Co-ordinator (the FOIC) is in a conflict of interest in handling both his access
request and this appeal. The appellant believed the City Clerk would also be in a conflict of
interest position if he were to replace the Co-ordinator on this file. In this regard, the
appellant stated that both the Co-ordinator and the Clerk have threatened legal action
against him. In support of his position in this regard, the appellant provided this office with
several pieces of correspondence relating to matters between him and these two City staff. The appellant also clarified that he is not interested in accessing records which were
provided to him in response to previous access requests. Further mediation could not be effected and this matter proceeded to inquiry. I decided to
seek representations from the City initially, and sent it a Notice of Inquiry setting out the
facts and issues at inquiry. The City submitted representations in response. I subsequently
sought representations from the appellant, and attached the non-confidential portions of the
City's submissions to the copy of the Notice of Inquiry that I sent to him. Upon receipt of the Notice of Inquiry, the appellant submitted a series of letters to this
office, covering a range of topics including: criticism of the process; asking questions or
making demands unrelated to the inquiry process; and seeking information relating to
previous appeals. After being provided with a deadline for the receipt of representations,
the appellant submitted extensive representations in response. From that point on, he has
continued to send in bits and pieces of information, comments and other "evidence" which
he asks that I add to the submissions he made.
CONCLUSION: I find the appellant's request to be frivolous and vexatious in the circumstances and dismiss this appeal.
BACKGROUND: The appellant has a long history of dealings with the City, much of it rife with conflict, with
respect to general interaction with City staff and members of Council and in the context of
making access requests. In order to put the City's decision, and ultimately my findings in this
order, into perspective, it is necessary to review this history in some detail, insofar as it
pertains to access requests under the Act.
Past history of requests under the Act In the past, much of the appellant's contact with the City revolved around issues relating to
the Cawthra Woodlot and the Woodlot Management Program. A number of these previous
interactions culminated in the issuance of Order M-947 in June 1997, wherein former
Adjudicator Anita Fineberg concluded, among other things, that the requests at issue in
those appeals were frivolous or vexatious.
Order M-947 In this order, the former Adjudicator found, in part, that the "nature, frequency and practice
of submitting numerous duplicative requests" constituted a "pattern of conduct" as that
phrase has been interpreted by this office. She acknowledged that the appellant likely had a
legitimate interest in the records being requested in those appeals. However, she found that
"very shortly after these requests began, the appellant's conduct with respect to the City
became 'an abuse of the right of access' …". Further on this point, the former Adjudicator
noted that: [t]he rights afforded the public to access under the Act are accompanied by
concomitant responsibilities on the part of requesters. One of these
responsibilities is working in tandem with the institution to further the purposes
of the Act. In rare cases, actions on the part of an appellant which frustrate
this approach can be said to be an abuse of this process. In this case, the actions of the appellant in dealing with the City's staff, both in
its Freedom of Information office and elsewhere, have not exhibited any
attempt to work constructively with the City to resolve his requests, and, in
fact, demonstrate the opposite. Despite the City's attempts to accommodate
the appellant, both within and outside the formal processes of the Act, he has
responded in an uncooperative and harassing manner to those who have
attempted to assist him. In my opinion, this type of conduct on the part of the
appellant is relevant to a finding that not only are certain requests frivolous or
vexatious, but also that the requester is abusing the freedom of information
processes, and I so find. The appellant's abuse of the freedom of information process has not been
limited to the request stage, but also extends to this office [the Commissioner's
office]. [emphasis in the original] In conclusion, former Adjudicator Fineberg dismissed the appeals. In addition, she invoked
her authority under section 43(3) of the Act to impose conditions on the processing of any
future requests made by the appellant. In particular, the former Adjudicator imposed a one
transaction limit on the number of requests and/or appeals from the appellant that the City is
required to process at any one point in time. The former Adjudicator clarified that the
transaction limit refers to each part of a request or an appeal, meaning that a three-part
request would be considered to consist of three transactions. The former Adjudicator also
restricted the total number of requests/appeals to be processed in one year to five. This
order was to be in effect for one year and the appellant was permitted to seek a variance at
the end of that time, failing which these terms were to continue in effect from year to year.
The conditions imposed by this order continue in effect from year to year. Before arriving at her conclusions in this order, the former Adjudicator set out in
considerable detail the history of the appellant's interactions with the City as well as the
manner in which he behaved during the processing of the various appeals with which she
was dealing. Some of her comments are relevant to the current request or otherwise are
helpful to place this matter in perspective: In the ten-month period of March to December 1994, the appellant filed a
total of 15 requests with the City, constituting 33% of all requests received by
the City pursuant to the Act. The vast majority of the requests related to
information concerning the Cawthra Woodlot and the Woodlot Management
Program. Another large group of requests seek access to information
concerning the manner in which various City employees, and in particular, staff
in the Freedom of Information office, are to "deal" with the appellant and his
requests under the Act. Two parts of one of the requests sought access to the
wages and expenses of the Mayor and councillors, and the City's deficit. Although the City opened only 15 files to respond to these requests, many of
the requests consisted of several parts. For example, the April 28 request
contained six parts, the May 2 request, five parts, the June 3 request, seven
parts, the June 20 request, 31 parts and the June 24, 1994 request, 10 parts. In 1995, the appellant filed an additional 18 requests under the Act,
comprising 58% of the City's requests in that year. Once again, the information
requested concerns the Cawthra Woodlot and the Woodlot Management
program, as well as information concerning the manner in which City
employees are to respond to the appellant's requests under the Act and the
costs the City has incurred in responding. Each of the February 10 and
November 10, 1995 requests consisted of 14 parts, although, as per its
practice in 1994, the City only opened and counted one request file for each
of the requests filed on these dates. The appellant filed five requests under the Act in 1996. The City identified all
10 parts comprising the August 7 request as being duplicates of previous
requests. The information sought in these 1996 requests again dealt with the
Cawthra Woodlot, the manner in which the City was to interact with the
appellant and the City's Active Record Indexing System (ARIS) and Inactive
Record Indexing System (IRIS) records management systems which were
previously the subject of Order M-870. In addition, in the City's chart setting out the requests that are the subject of
this appeal, 23 parts of the requests are duplicates of requests previously
submitted by the appellant to the City. The former Adjudicator also considered other matters which she viewed as being relevant
to the issue, such as: the appellant's practice of abandoning the request when the fee is not
waived; continued requests for records which the City has previously indicated do not exist;
decisions that were appealed even though access was granted; and, as is apparent from her
comments (above), the appellant's "attitude" towards the City's employees and the freedom
of information process. Another order issued by this office is also relevant to the issues in this appeal.
Order M-716 In this order concerning an appeal filed by the appellant against the City, Assistant
Commissioner Tom Mitchinson considered the adequacy of the City's response to the
appellant's request. It appears that this issue had been raised in a number of appeals
submitted by the appellant at about the same time and the parties agreed to hold these other
appeals in abeyance pending the Assistant Commissioner's decision in Order M-716. In
concluding that the City had adequately responded to the appellant's request, the Assistant
Commissioner described the format of the appellant's request (noting that this request
followed a similar format to his other requests): In the opening paragraph the requester introduces himself, emphasizes the
importance of confidentiality, identifies his preferred method of access, and
clarifies that he is primarily interested in working files with handwritten side
notes included. This first paragraph closes with the following sentence: "Please
include where the file/record (its location in ARIS or IRIS), is held & by who
or who looks after the record." These acronyms stand for Active Records
Indexing System and Inactive Records Indexing System, the computerized
records management systems used by the City for all of its record holdings. The opening paragraph is followed by an outline of the specific information the
requester is seeking. This part of the letter is different for each request. The letter then goes on to stress the importance of processing the request
quickly, identifies the reasons for requesting a fee waiver, and closes by
explaining how the requester can be contacted, with particular instructions as
to how his phone answering machine should be used. The basis for the appellant's appeal was that the City had failed to include reference as to
where the responsive records were located on the ARIS or IRIS system. In finding that this
information did not form a part of the request, Assistant Commissioner Mitchinson stated: The parts of the City's records management indexing system which were used
to retrieve responsive records and the City employees who are responsible for
managing these particular record holdings do not appear on the face of these
records and, in my view, the City is not required to create new records which
would link these records management codes to the records accessed by the
appellant in order to comply with section 19 of the Act. In my view, the information contained in the opening paragraph of this and
other similar request letters submitted by the appellant relates to the form in
which the appellant would like to receive the records and falls outside the
scope of the substantive access request.
Recent history of requests under the Act On December 14, 1999, the appellant submitted a three-part request to the City for
records relating to an "event" (an incident involving the appellant) that occurred on October
28, 1999 at the Cawthra Estate (Request 99-000223). In particular, he asked for: 1. the names, employee numbers, their rank as well as any other way to clearly identify
the individual City staff members involved in this event; 2. a copy of whatever records they filed or created regarding this event; and 3. a copy of all the City by-laws or policies that apply to persons taking photographs on
City property (which he asked to be made available for viewing so that he could
select those portions he wished to have copied). As a preface to this request, the appellant specified the manner in which the City is to
respond to his request, the specific location of the records (including information about
ARIS and IRIS codes). In this regard, the format of the appellant's request is very similar to
that described by the Assistant Commissioner in Order M-716. The City responded initially on December 15, 1999, and subsequently issued a decision on
January 13, 2000, enclosing an index of records on which it identified that eight records
exist with respect to part two of the request and indicated that seven of them would be
disclosed to the appellant. The index identified that the remaining record was denied
pursuant to section 12 (solicitor-client privilege) of the Act. The City also indicated that no records exist relating to part one of the request and provided
an explanation for their non-existence. The City indicated further that no records exist
relating to part three insofar as private individuals are concerned, noting that records
regarding commercial photography are publicly available and can be viewed anytime. The
City advised the appellant that it was waiving the fees associated with processing this
request. The appellant did not appeal this decision. The appellant submitted another similarly worded request on September 15, 2000, this time
for an incident involving him on August 16, 2000 at the Cawthra Estate (Request
000161-2000). The first two parts of this request were virtually identical to those in the
previous request, as was the preface. In part three of the request, the appellant asked for
records delivered to the City by non-City staff. The City responded to this request on October 12, 2000, identifying two records
responsive to part two of the request. The City granted the appellant partial access to these
records with severances made to identifying information relating to staff and participants
pursuant to sections 8(1)(e) (endanger life or safety) and 14 (invasion of privacy). The City indicated further that names and other information about staff (in response to part
one of the request) was being denied under section 8(1)(e). Finally, the City noted that no
further documents exist. As in its previous access decision, the City waived any fees
associated with the processing of this request. The appellant did not appeal this decision. On October 23, 2000, the appellant submitted a similarly worded three-part request for
records relating to an incident involving him on September 13, 2000 at the Cawthra
Community Centre (Request 000181-2000). In part three of this request, the appellant
asked for a videotape of the incident. On November 17, 2000, the City granted partial access to an incident report and three staff
reports (with the personal information of staff withheld pursuant to sections 8(1)(e) and 14).
Similar to its previous decision, the City stated that access was denied to employee names,
employee numbers and employee ranks pursuant to section 8(1)(e). The City indicated
further that no other records exist, and in particular, that no videotape exists. Finally, the
City indicated that it was waiving the fees associated with processing the request. The appellant responded to this decision by requesting that the City provide him with a "list"
(meaning index) of the records (as it had done in the past), even though only four records
were identified and all were disclosed to him (in part). He then "required" the City to pose
specific questions to certain identified individuals regarding the videotape. The City complied with his request for an index and reiterated its decision that the videotape
does not exist. The City stated further that it was not able to respond to the appellant's
questions and suggested that he contact the director of Recreation and Parks. The appellant did not appeal this decision. Approximately a week after the City's final response to the previous request, the appellant
submitted another request (on December 5, 2000) to the City. In this similarly formatted
request (Request 000219-2000), the appellant requested that the City conduct a search in
its Corporate Security Division, for all of his personal information. In making this request,
the appellant stated that it was "a request for a reasonable search for his personal
information, not one that will present me with an unacceptably large bill for searching". To be specific, the appellant indicated that he was seeking all records that "refer to me in
their care". Moreover, if records were found in more than one file, he expected the number
of files and their titles to be noted. He indicated further that the request was to cover any
directions regarding how he is to be dealt with. As well, he specified that he was seeking
any references to the videotape "that recorded the September 13, 2000 event" (even
though the City had indicated twice that this videotape did not exist and that it had provided
him with all records relating to the September 13, 2000 incident). On December 15, 2000, the City wrote to the appellant and explained that its security
division does not organize records based on names. As a result, the City noted that it was
not possible to retrieve records using his name alone. The City indicated that if the appellant
wished to pursue this request, he should forward a more precise description of the types of
records which may contain information about him, such as particular incidents, locations,
dates, and so on. The City stated that once the appellant provided this information, it would
process his request. A number of written communications were exchanged between the appellant and the City,
relating to the City's request for clarification. Essentially, the appellant took issue with the
manner in which the City said it maintained its records. As part of his criticism, the appellant
parsed the City's December 15 letter, commenting on each sentence and requiring the City
to respond to him to explain "what these sentences mean to you". The appellant set out his
views regarding how the records should be maintained and stated: "Therefore, I believe you
are not being truthful or factual in your letter". The appellant indicated that he would not change his request, stating, "I direct you to carry
out your responsibilities under the Act". In response to this, the City wrote back on January 12, 2001, to advise the appellant that
according to the Manager of Security Operations, all Incident Reports are filed by month of
occurrence and that there are approximately 700 occurrences filed per month. The City
asked the appellant again to provide specific dates of occurrences where he is named since
the reports are not filed by name. The City also indicated at this time that fees were
expected to apply, depending on the number of months to be searched. On January 16, 2001, the appellant responded to the City stating that he believed the City
was refusing him service. He suggested locations where he believed records might exist
based on his review of the types of records the City maintains (as described in its FOI
Manual). Many of the comments made by the appellant in this letter were re-iterated in his
next access request (the request at issue). In particular, he stated, "please make a point of
finding the records regarding the November 16, 2000 event that involved …". The appellant then "directs" the City to contact him to explain its records system and to
clarify his request. Finally, referring to two of his previous requests (Request 000161-2000 and
000181-2000), the appellant stated: In my requests I have specifically asked you provide information regarding the
records location and you have failed to do so. This is withholding of service
and the Information and Privacy Commission has never specifically ruled that
this information is to be denied. On January 19, 2001, he sent a follow-up letter in which he refers to the January 16 letter
and then suggests that City staff be contacted and asked if they have any files/records about
him. He indicated that the City should contact him for further directions in this regard. He
also asked that the City explain its filing methods to him. He concluded that the FOIC is
"unlawfully denying me access" which he believed shows that she is in a conflict of interest. The appellant then sent another letter to the City on January 23, 2001 in which he stated: I have not received a decision letter yet from you regarding this request. If one
has been sent then inform me of that fact and send me a copy. I have also not
been contacted by you regarding efforts at clarifying my request. I have
repeatedly instructed you to do so and you have not. It is necessary for you to
do so in order to grant me full access to all the records that I am requesting
and to keep costs down. SO CALL ME! [emphasis in the original] The City wrote two letters to the appellant on this same date. In one letter, the City quoted
the file number which had been assigned to the final request (000219-2000), and stated: This is in response to your request for access to your personal information in
the City's Corporate Security Office and further to your letter of January 16,
2001, wherein you identify a particular record dated November 16, 2000. A search was conducted of the Corporate Security records and no report
involving you was found for that date. In the other letter, the City indicated that it was responding to the appellant's January 19,
2001 letter, this time simply referring back to its January 12 letter. Finally, on January 29, 2001, the appellant wrote again to the City, indicating that he was
abandoning his request: Due to the manner in which you have handled my FOI request, withheld
service, refused to communicate with me in a meaningful and/or professional
fashion and your refusal to discuss my clarifications and/or if it would be used
by you for a search for records, I am forced by your actions to terminate my
current FOI request 000219-2000. [emphasis in the original]
The current request and appeal The current request, which the appellant sent to the City was dated (on the first page)
January 16, 2001 (but signed and dated on the last page and apparently delivered by the
appellant on January 29, 2001). As I noted at the beginning of this order, this request was
for access to records containing the appellant's personal information, including records that
the City would or could use to ban him from City property. In making this request, the
appellant specified that the lowest cost search method best suited to finding all of the
records was to be used, but only after speaking to him about the different methods of
searching that were possible. He then suggested how/where to search (in general terms). Referring to his previous requests (99-000223, 000161 and 000181) through which he
received records, he indicated that the location of these records/files "is a good place to
start", noting that "these kinds of records and any other kinds of records that the City
would/could be used to ban me from City property … are the ones I'm seeking" [emphasis
in the original]. In other words, the appellant is seeking records in the City's custody that
contain "my personal information and report about me and my activities." He specified the
departments in which he believes records are likely to be kept. He indicated further that a
search should be conducted in the offices of Corporate Security as he believed that it is only
logical that this department would have records. He noted that he has been told that the
filing system does not permit a search by file content but finds this explanation to be
"unbelievable". He also asked that the City conduct a search to specifically find records
relating to the November 16, 2000 incident (referred to in his January 16, 2001 letter). He
also indicated that the FOIC should contact City staff to see if they have notes/files relating
to him. Finally, the appellant requested that the records be grouped by department and that
they be identified using the Department Code. In this regard, the appellant stated: The City has methods for identifying the location of its files/records and which
are noted in the FOI manual, codes for dept., CA.05, etc., so they are ways
to provide the record of where the source files are located and I wish that
record, as a part of this request. In concluding this request, the appellant indicated that the City should submit a fee estimate
to him before searching. As I noted above, the City refused access to the requested information in accordance with
section 20.1 of the Act stating that in its view, the appellant's request was vexatious as
contemplated by section 4(1)(b) of the Act, and the appellant appealed this decision.
PRELIMINARY MATTERS: THE APPELLANT'S REPRESENTATIONS The appellant's submissions raise a number of new issues, including bias with respect to this
office (the IPC) generally, and gender bias based on the fact that I am a woman, and the
infringement of his rights under the Canadian Charter of Rights and Freedoms (the
Charter). I will address these issues below. The appellant also submitted a number of documents which he believes support his position
on what he considers to be at issue in this appeal. This documentation includes, but is not
limited to: * information relating to the Cawthra Woodlot, much of which is produced by him
and/or the organizations to which he belongs which he believes demonstrates how the
City has misled the public and/or how the City is "shutting me out of the process"; * information which he claims is "evidence" of a political agenda on the City's part
against him, the organizations he is involved in and/or represents and their political activism; * information pertaining to other access requests he has made to the City as well as to
other institutions; * information which he believes is "evidence" of political interference and/or misuse of
the Act by the City and/or its FOIC; and * letters of support for his access request from other members of, or those who
support the organizations to which he belongs. Because of the volume of information provided by the appellant (much of which, as I
indicated above, was provided beyond the final date for the receipt of representations), I
will simply acknowledge that this documentation has been received and considered by me. In my view, the vast majority of this documentation supports a conclusion that there are,
without question, issues between the appellant and the City, including the FOIC, the Clerk,
the Communications Director, the Commissioner of Corporate Services, the City
Manager's and City Clerk's offices generally, "City staff", the Mayor and Council generally.
While some of this documentation might be interpreted as evidence relating to the issue of
conflict of interest with respect to the FOIC, it is equally suggestive that, as a result of the
appellant's behaviour, there may be no-one left at the City with whom he does not have a
dispute. It also appears that the inclusion of this "evidence" is intended to demonstrate that the
appellant's concerns are serious, as are his requests for information, that he speaks for the
public insofar as his political activism is concerned, and that his requests are, therefore, not
frivolous or vexatious. This appeal is not a test of the seriousness of the issues the appellant is involved in. Rather,
the issue to be determined is whether the appellant's request is frivolous or vexatious in the
circumstances of the current request, bearing in mind the history of the appellant's dealings
with the City. In my view, the documentary evidence submitted by the appellant does not
pertain to the matter before me. On this basis, I find that the majority of it is not relevant to
the specific issues on appeal. Even if I were to conclude that some of this "evidence" is relevant to his allegations that the
FOIC and the Clerk are in a conflict of interest, given my decision below, it is not necessary
for me to discuss the documents submitted by the appellant further.
BIAS The appellant suggests that he is not able to receive a fair adjudication of the issues from the
IPC as this office is biased in favour of government institutions, and in particular, the City.
He believes further that the IPC is biased against the poor. In addition, he claims that,
because I am a woman, I am unable to impartially address the issues concerning him. With respect to the IPC, the appellant submits that this office is corrupt and has perverted
the Act into a form of legalized government censorship. He argues that the IPC supports,
justifies and perpetuates institutional abuses of the public. The appellant believes that the
IPC has turned government accountability into a "dictatorial weapon against all who would
oppose the government". As a result, the appellant states: In the [City's] case, I have seen a Frivolous and Vexatious ruling used across
the board by most City staff as their reason for denying a community leader,
me, service. The appellant submits that because of the previous IPC rulings against him, this office (and
implicitly the adjudicator deciding this appeal) cannot "make a complete new ruling (sic)
against me". The appellant submits the following as "evidence" in support of a finding of IPC bias: * the IPC allowed the City's claim to go ahead to adjudication; * the IPC allowed the City to control the process (presumably because it "permitted"
the City to claim that the request is frivolous or vexatious); * the IPC ended mediation against his wishes; * the IPC has taken and/or accepted "evidence" from the City which he believes to be
false; * the IPC withheld part of the City's representations (pursuant to the sharing of
representations procedures); * the IPC is restricting this appeal to "frivolous or vexatious" and not looking at what
was requested; and * the IPC has structured the appeal and inquiry to reinforce the City's "self-serving
position that I am a trouble-maker". On a more general level, the appellant objects to the IPC procedures for the receipt and
sharing of representations, which he appears to claim is evidence of bias against him. The appellant states further that the IPC has ruled against him in the past because "it knew I
was too poor to fight back". As far as his allegations of gender bias are concerned, the basis for his claim is most
succinctly put in a letter the appellant wrote to the Commissioner on September 12, 2001: In my Sept. 9/01 representation and now I do ask that, the IPC
Commissioner hand this Inquiry over to a man, some like [a male former
adjudicator]. I do have reason to believe there are gender prejudices affecting the IPC's
decision making. I feel the need to go on the record and say that because this
Inquiry involves accusations of abuse, threatening behaviour towards women
and inappropriate behaviour around children. And Order M-947 which was
done by a women and it is totally out to lunch in the statements made,
reasoning used and important evidence ignored. I am not comfortable with a
woman handling this Inquiry. … Given the nature of the statements being made by the City design to motive
(sic) women to come to the aid of other women against the big bad man who
is going after old women and children and the outrageous conduct of Anita
Fineberg, I have serious concerns about prejudice (sic) decision making by
women in the IPC. [emphasis in the original] The rules of natural justice and procedural fairness emphasize the right to an unbiased
adjudication in administrative decision-making. Allegations of bias on the part of the tribunal
or a particular adjudicator are, therefore, very serious, and, as a consequence, should not
be made lightly (Robert F. Reid & Hillel David, Administrative Law and Practice (2nd
ed.), (Butterworth's: Toronto, 1978), at page 260). It appears well settled in law that it is not necessary to provide proof of "actual bias".
Rather, the test most commonly applied by the courts is whether there exists a "reasonable
apprehension of bias" (David Phillip Jones & Anne S. de Villars, Principles of
Administrative Law (2nd. ed.), (Carswell: Toronto, 1994) at pp. 361 - 363). Speaking for the majority in Baker v. Canada (Minister of Citizenship and Immigration)
(1999), 174 D.L.R. (4th) 193 (S.C.C.) on this issue, L'Heureux-Dube J. stated: The test for reasonable apprehension of bias was set out by de Grandpre J.,
writing in dissent, in Committee for Justice and Liberty v. National Energy
Board, [1978] 1 S.C.R. 369 at p. 394, 68 D.L.R. (3d) 716: … the apprehension of bias must be a reasonable one, held by
reasonable and right minded persons, applying themselves to the
question and obtaining thereon the required information … that
test is "what would an informed person, viewing the matter
realistically and practically - and having thought the matter
through - conclude. Would he think that it is more likely than not
that [the decision-maker], whether consciously or unconsciously,
would not decide fairly." Commenting on this issue in Administrative Law in Canada (3rd. ed.), (Butterworth's,
2001)), at page 106, author Sara Blake noted: There is a presumption that a tribunal member will act fairly and impartially, in
the absence of evidence to the contrary. The onus of demonstrating bias lies
on the person who alleges it … Mere suspicion is not enough … Taking this one step further, in my view, the onus is on the appellant (in this case) to provide
a credible basis for the allegation. Insofar as the appellant's allegations against the IPC are concerned, they relate primarily to
the nature of the governing legislation and the role and operation of the IPC as
contemplated by that legislation. Otherwise, they simply reflect his disagreement with the
manner in which this office has dealt with him in the past and the decisions that have been
made in his appeals. In my view, the appellant's arguments are based on his unreasonable expectations with
respect to the Act and its processes. Disagreement with the processes and decisions of
tribunals alone is not a sufficient basis for a finding that the tribunal is biased against a
particular group or individual party. Absent any cogent evidence which might support his
claim, I find that none of his arguments form a basis for a finding of a reasonable
apprehension of bias on the part of the IPC, nor would any reasonable person so conclude. With respect to the issue of gender bias, the appellant alleges that I am incapable of
impartially adjudicating the issues in this appeal simply because I am a woman and because
Order M-947 was decided by a woman. The basis for this argument appears to be that his
disputes often (and particularly in this case) involve women and/or children, although the
Clerk of the City, against whom the appellant has also alleged a conflict of interest, is a man. Other than making a bald assertion, the appellant has provided no credible evidence of or
basis for concluding that there exists a reasonable apprehension of gender bias (or bias
against the poor for that matter) at this office generally, or in respect of my decision-making.
Accordingly, I do not accept this allegation. One final point on this issue merits comment, however. The appellant claims that since
former Adjudicator Fineberg's finding that he and his requests were frivolous and vexatious,
the City has, essentially, used this decision as a basis for denying him service. This assertion
is untenable in light of the degree of "service" the appellant has received (as described
above) with respect to all of the issues in this appeal (stemming back to, at a minimum, his
December 14, 1999 request).
THE CHARTER The appellant believes his Charter rights have been infringed as a result of the decision in
Order M-947 and, more generally, because he has been denied access to the City's
records. Although it is not entirely clear, it appears that he is arguing that the application of
the frivolous and vexatious provisions of the Act is a violation of his Charter rights. The basis for his claim is the importance of access to government information in supporting
democracy in general and Charter rights in particular. I agree that access to government information is fundamental to the exercise of democratic
rights. The creation of this legislation reflects the importance of the principles of government
accountability and the effective participation of the public in government decision-making.
Nevertheless, as indicated in Ontario (Attorney General) v. Fineberg (1994), 19 O.R.
(3d) 197 (Div. Ct.) at p. 204, "… it is not possible to proclaim that s. 2(b) [freedom of the
press] entails a general constitutional right of access to all information under the control of
government …". Similarly, I am not persuaded that there is any Charter-based entitlement
to submit frivolous or vexatious requests under the Act. Although the appellant has made
extensive representations on this issue, I find that he has failed to demonstrate that the
application of the provision in section 4(1)(b) of the Act constitutes a violation of his
Charter rights.
DISCUSSION: FRIVOLOUS OR VEXATIOUS The provisions that 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 go on to indicate 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. In Order M-850, Assistant Commissioner Mitchinson observed 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.
The City's position In addressing its onus in this case, the City has submitted background information relating to
the previous requests submitted by the appellant (as described under the heading "Recent
history of requests").
The appellant's position The appellant reiterates his objection to the IPC proceeding with this inquiry on the basis of
the City's claim. He also submits that the City has not met its onus in establishing that his
request is frivolous or vexatious. His representations suggest that he is at a disadvantage both in requesting information under
the Act and in responding to the issues at inquiry because he is neither a lawyer nor skilled
in Freedom of Information matters. His representations appear to imply that he is unsure of
what is required in this process and that the City has been less than helpful in assisting him. His representations overall suggest that he is frustrated with the City's "attitude" toward him
and its attempts to obstruct his pursuit of information. In response to the Notice of Inquiry
and the City's representations, the appellant concludes: [The FOIC] was abusing the FOI process by endlessly delaying granting
access while seeking clarifications to my request, which also meant she could
avoid writing a decision letter. Before I ended my FOI request I consulted
others and discovered the facts. As the IPC has (wrongfully), placed limits on
my FOI requests, such that I can't make requests while one is being appealed
it is only reasonable to appeal only FOI requests that completely express the
request and will grant access to all City records. The IPC has been made
aware that the City was a hostile institution before it made its F&V ruling and
this is the abuses of the IPC's F&V ruling, it has become a weapon. Again this
is only happening as [the FOIC] refuses reasonable service and it is clear my
request for personal information will go to appeal. These letters show that it is
the City that is the bully in this case, the abuser of the process and that I am
the victim.
Section 5.1(a) Pattern of Conduct that Amounts to an Abuse of the Right of Access or would interfere with the operations of the institution To determine whether the criteria outlined in section 5.1(a) are established, I must first
determine whether the appellant's filing of the current request, by itself or in conjunction with
his previous request, forms part of a "pattern of conduct". If I find that it does, then I must
determine (1) whether this pattern amounts to an abuse of the right of access, or (2)
whether this pattern would interfere with the operations of the City. In Order M-850, Assistant Commissioner Mitchinson defined the term "pattern of
conduct". He stated that, for such a pattern to exist, one must find "recurring incidents of
related or similar requests on the part of the requester (or with which the requester is
connected in some material way)". He also pointed out that, in determining whether a
pattern of conduct has been established, the time over which the behaviour occurs is a
relevant consideration. Further, in Order P-1534, he determined that a distinction must be
made between formal requests for access under the Act and informal contact between a
member of the public and an institution outside the formal context of the Act. I agree with
these approaches and adopt them for the purposes of this appeal. In Order M-947, former Adjudicator Fineberg considered whether the appellant's 14
requests submitted to the institution over an 11-month period constituted a "pattern of
conduct". In that case, the appellant had submitted numerous previous requests. In
determining that the City had established a pattern of conduct in the circumstances of that
appeal, the former Adjudicator noted that "the fact that previous requests may overlap with
each other will not, on its own, establish that these requests are part of such a pattern"
(emphasis in the original). She concluded, however, that: What is most striking about the pattern of these requests is that the City has
identified each of the ten parts comprising the August 7 request alone as being
duplicates of previous requests. In addition, two parts of the November 10,
1995 request duplicate previous requests, and two are duplicated within this
one request. Because of the duplication in the August 7 request, I have
concluded that, by themselves, these fourteen requests constitute "recurring
incidents of related or similar requests" and, hence, a pattern of conduct for
the purposes of section 5.1(a) of the Regulation. Although past behaviour, or a previous finding that the appellant's conduct constituted a
"pattern of conduct" are not determinative in establishing that the circumstances surrounding
the current request should be similarly characterized, they are relevant in assessing this issue.
In particular, in another case, I might be disinclined to find that two similarly worded, or
overlapping requests would be sufficient to establish a "pattern of conduct" (see, for
example, Order MO-1488). Where, however, an appellant has clearly demonstrated a
"pattern of conduct" in the past, and the circumstances of a current request parallel that
pattern, I am inclined to interpret them as a resurgence of that previous "pattern of conduct",
if not a continuation of it. Taken alone, or even grouped together, the appellant's first three requests (beginning in
December, 1999) do not constitute such a pattern. However, in submitting his December 5,
2000 request, the appellant embarked upon a return to his previous conduct in his manner
of requesting information from the City, not only by revisiting previously requested
information but also in the manner in which he pursued his request. By unilaterally
abandoning the December 5, 2000 request and essentially resubmitting it on the same date,
the appellant has, in my view, engaged in a "pattern of conduct" as that term has been
defined by this office.
Abuse of the right of access The meaning of "abuse of the right of access" was also discussed by Assistant
Commissioner Mitchinson in Order M-850. He commented on this phrase 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 basis for the finding that the
appellant had engaged in a course of conduct which constituted an abuse of
process. The Commissioner found that an excessive volume of requests and
appeals, combined with four other factors, justified a conclusion that the
appellant in that case had abused the access process. The four other factors
were: 1. the varied nature and broad scope of the requests; 2. the appearance that they were submitted for their "nuisance" value; 3. increased requests and appeals following the initiation of court proceedings by the
institution; 4. the requester's working in concert with another requester whose publicly stated aim is to
harass government and to break or burden the system. Another source of assistance for interpreting the words "abuse of the right of
access" is the case law dealing with the term "abuse of process". ... To summarize, the abuse of process cases provide several examples of the
meaning of "abuse" in the legal context, including: * proceedings instituted without any reasonable ground; * proceedings whose purpose is not legitimate, but is rather designed to harass, or to
accomplish some other objective unrelated to the process being used; * situations where a process is used more than once, for the purpose of revisiting an
issue which has been previously addressed. In my view, although this is not intended to be an exhaustive list, these are
examples of the type of conduct which would amount to "an abuse of the right
of access" for the purposes of section 5.1(a). In Order M-864, Assistant Commissioner Irwin Glasberg summarized the interpretations of
"abuse of the right of access" in Orders M-618 and M-850 as follows: Following my review of these two orders, and taking into account the wording
of section 5.1(a) of the regulations, I believe that there are a number of factors
that are relevant in deciding whether a pattern of conduct amounts to an abuse
of the right of access. Some of these considerations are listed below: (1) The actual number of requests filed (Are they considered excessive by reasonable standards?) (2) The nature and scope of the requests (For example, are they excessively broad and varied in scope or unusually
detailed? Alternatively, are the requests repetitive in character or are they used
to revisit an issue which has previously been addressed?) (3) The purpose of the requests (For example (a) have they been submitted for their "nuisance" value, (b) are
they made without reasonable or legitimate grounds, and/or (c) are they
intended to accomplish some objective unrelated to the access process?) (4) The sequencing of requests (Do the volume of requests or appeals increase following the initiation of court
proceedings by the institution or the occurrence of some other related event?) (5) The intent of the requester (Is the requester's aim is to harass government or to break or burden the
system?) While this list is not intended to be exhaustive, these factors represent the type
of considerations which could define "an abuse of the right of access" for the
purposes of section 5.1(a). I would also reiterate the view, originally
expressed by Commissioner Wright in Order M-618, that a high volume of
requests alone would not necessarily amount to an abuse of process. Previous orders of this office have found that the abuse of the right of access described by
section 5.1(a) refers only to the access process under the Act, and is not intended to
include proceedings in other forums (Orders M-906, M-1066, M-1071 and P-1534). I adopt the analyses put forward by these orders for the purposes of the present appeal. Commenting on the "legitimacy" of the appellant's purpose in making access requests,
former Adjudicator Fineberg found in Order M-947, that the appellant's purpose changed
in focus over time, thus becoming an abuse of the right of access: In my view, when the appellant initially began requesting information from the
City, particularly concerning the Cawthra Woodlot and the Woodlot
Management Program, he could very well have been said to have had a
legitimate interest in the records being requested. I would note however, that,
despite the fact that he has suggested that there is a public interest element to
his requests, he has never provided any evidence of the legitimate uses to
which he has put the information to which he has received access. Nor has he
provided any evidence of the community and/or environmental groups which
he maintains are interested in the information he receives. It is my view that
very shortly after these requests began, the appellant's conduct with respect to
the City became "an abuse of the right of access" for the following reasons. The apparent purpose of the requests changed their focus from reasonable or
legitimate grounds to one which may be characterized as seeking to
accomplish some objective unrelated to the access process. For example, the
requester became focused on seeking information related to how the City
dealt with his requests and the amount of time and money the City had spent
dealing with him. Because the appellant did not feel he was receiving the
"service" from the City's Freedom of Information branch to which he felt he
was entitled, he began using the Act and the freedom of information process
as a means to express his personal attacks on the personnel involved in the
process. To this end, his requests became a "springboard" for launching
attacks on City council members and the City legal department. Although the appellant now explains why he pursued requests where the City
had previously indicated that no responsive records existed, I find that this
explanation comes rather late in the day and lacks credibility. As I have noted,
at no time during the request and appeals process involving these issues did
the appellant raise this point. I can think of no other explanation, nor has the
appellant offered a credible one, as to why he would pursue these particular
cases unless it was for their "nuisance" value or to harass the City. Neither of
these objectives support the use of the process for a legitimate purpose. The same holds true with respect to those appeals involving fees. Under the
Act, the appellant is entitled to dispute the amount of fees charged for access
to information, as well as appealing the City's decision not to waive the fee. If,
as in the case of Order M-509, the City's position is upheld, again the
appellant has the right to decline to pay the fees. However, in my view, these
legitimate positions under the Act become an abuse of the right of access
when access is requested to the same records a second time. In addition, the appellant has repeatedly appealed decisions of the City in
which he was provided access to the records to which he was seeking access.
An example of this conduct relates to the ARIS/IRIS appeals in which the
issue was addressed by Order M-716. The appellant continued to pursue
appeals in which the same matter considered in that order was the only issue in
dispute. Again, I can think of no legitimate purpose, nor has the appellant
offered one, for this exercise. In my view, taking the evidence as a whole, the City has provided me with
sufficient evidence to establish that there are reasonable grounds for the City
to consider the appellant's requests as part of a pattern of conduct that
amounts to an abuse of the right of access. As I indicated above, the appellant clearly has issues with the City. In my view, his actions
and behaviour in the manner in which he approaches the freedom of information process
indicate an intention to use this process to further his dispute with the City. Similar to the conclusions reached by former Adjudicator Fineberg in Order M-947, I find
that the appellant has not made any effort to work constructively with the City to resolve his
requests. In particular, although I do not doubt that the appellant has an interest in the
records being requested, in submitting his December 5, 2000 request, he began what can
only be characterized as an escalation of the "uncooperative and harassing manner" he
exhibited previously. The series of letters exchanged between him and the City
demonstrates his refusal to work constructively with the City to resolve his request. Not
only did he attempt to bait and badger the FOIC, his correspondence reflected the
contempt he had previously shown towards City staff and the freedom of information
process generally. While the City has made genuine efforts to accommodate the appellant, he has responded
through directives, uncompromising demands, criticism and belligerence. This behaviour
was demonstrated not only towards the City, but throughout the inquiry process. Given the appellant's experience with the Act and this office, I do not accept his suggestion
that his behaviour is a result of confusion or inexperience with the Act. Although I accept
that he is frustrated, in my view, it is more likely a result of his own unreasonable
expectations and the thwarting of his attempts to control the process. Based on the documentary and other evidence described above, I am convinced that the
confrontational approaches he takes with respect to his requests and appeals is by design.
In contrast to working constructively in pursuit of his objectives, the appellant seeks to
control the processes for responding to and resolving freedom of information matters, and
he demands almost unlimited attention of any party who approaches him or whom he deems
it necessary to contact, be it City representative or a representative of the IPC. Taken as a whole, I find that the evidence supports a conclusion that the appellant's request
is part of a pattern of conduct that amounts to an abuse of the right of access, and that is my
finding. The question remains, how should this abuse of the processes of the Act be remedied? It is
abundantly clear that the appellant has not learned from his previous experience. In my
view, it is questionable whether he will amend his behaviour in the future. In a recent
decision, for example, Assistant Commissioner Mitchinson dealt with the length to which
this appellant is prepared to go to circumvent the restrictions imposed on him in Order
M-947 (Order MO-1497). The simple answer might be to prohibit the appellant from using
the processes of the Act. However, at this point in time, a prohibition against the appellant's
exercise of his statutory rights for all time would be too extreme. Nevertheless, I think it
appropriate to impose serious restrictions on the means by which the appellant exercises
these rights. As a result of Order M-947, the City is only required to process one transaction at a time
(which includes both requests and appeals) and a total of five transactions in any year. I find
this to be a reasonable limit on the appellant's right of access and, therefore, will not vary
the conditions imposed by former Adjudicator Fineberg. In addition, pursuant to section 43(3) of the Act, in the order provisions below, I will
impose conditions on the manner in which the appellant may interact with the City with
respect to his access requests and appeals of the City's decisions.
CONCLUSION: As I noted above, the appellant believes that both the FOIC and the Clerk are in a conflict
of interest in dealing with his access requests and appeals because they have threatened
legal action against him. This matter arose in relation to certain public statements he had
made about them. I have decided, for reasons outlined below, that I need not address this issue in this order. Section 39(1) of the Act provides that a person who makes a request for information under
the Act may appeal any decision of a head to the Commissioner. Pursuant to section
20.1(1)(c), this includes a decision by the head that the request is frivolous or vexatious. Previous orders of this office have determined that the Commissioner or her delegate has
the inherent power to review all matters pertaining to the decision of a head (see, for
example, Orders M-315, M-449, M-1044, P-158, P-540 and P-1115). The basis for this
conclusion is succinctly stated by Adjudicator Donald Hale in Order P-1115 (in the context
of determining questions of bias): Inherent in the powers granted to the Commissioner, as well as his delegates,
is the power to determine questions of bias. The Commissioner's office, in its
capacity as an administrative tribunal with certain legislative functions, is
required to ensure that the rules of natural justice govern the access to
information regime in Ontario. As such, I find that I am acting within my
jurisdiction in reviewing and making a determination as to an allegation of bias
on the part of a decision maker under the Act. Accordingly, I am satisfied that I have the power to consider the issue of an alleged conflict
of interest at the request stage. In the circumstances of this case, however, I have concluded
that it is not necessary or appropriate for me to do so because the Commissioner's power
to supervise the access process provides a suitable remedy. This supervisory role over the processes and application of the Act generally has been
canvassed in previous orders of this office (Orders 164, 207, P-345, P-373, P-537,
P-658, P-1200, P-1575, M-618, M-849, MO-1053 and MO-1353-I, for example). In
Order M-618, former Commissioner Tom Wright considered his jurisdiction to entertain a
claim that the appellant's request in that case was frivolous or vexatious in the absence of
legislative enactment. Order M-618 was decided prior to the amendment to the Act, which
resulted in the inclusion of sections 4(1) and 20.1, but his comments continue to have
relevance to the Commissioner's supervisory role generally. He stated: The Legislature created the Office of the Information and Privacy
Commissioner to administer the Act in ways that facilitate the purposes of the
legislation. This mandate cannot require the Commissioner to act unreasonably
in administering his own processes, or in supervising the processes of
institutions. The Legislature must have intended that the Commissioner have
the necessary authority to control his own processes, and to supervise the
processes of institutions under the Act, so as to minimize or eliminate the
potential for abuse. I have been referred to ample and persuasive legal authority for the
proposition that, as an administrative tribunal exercising quasi-judicial
functions, the Commissioner is "master of his own process". On this basis I
believe that I have the necessary authority to control what I identify as abuse
of that process which would frustrate the intent of the Legislature in creating
both a freedom of information regime and an office for its administration. Speaking to the question of whether his jurisdiction to control his own processes extends to
an ability to supervise the processes of institutions faced with abuse of process at the
request stage, former Commissioner Wright concluded: If I were to accept [the appellant's] submission that I am powerless to remedy
the abuse which I have identified, and that I must mechanically require
institutions and my office to be the subjects of that abuse, I would not be
fulfilling the objectives of the legislation, but frustrating them. Notwithstanding
the absence of express powers vested in the Commissioner for dealing with
abuse of process, I am not prepared to serve as agent for [the appellant's]
abuse by perpetuating meaningless exercises in the expenditure of government
resources merely to satisfy [the appellant's] curiosity, or to permit him to test
the system or render it dysfunctional. This would offend public policy and
bring the administration of Ontario's freedom of information legislation into
disrepute. I agree fully with these conclusions and find that they are particularly germane where parties
are in conflict. It is predictable that a claim that a request is frivolous or vexatious will more
likely occur where relations between a requester and institution are strained or otherwise
problematic. The inherent supervisory function of the IPC in these cases ensures that
appropriate considerations (in respect of the behaviour of both parties) are taken into
account in deciding whether to uphold such a claim (see, for example, Order MO-1488). In exercising this inherent supervisory role over the processes of this office and institutions
alike, I have independently reviewed the circumstances surrounding this appeal, as
described above, based on the documentary evidence alone. In particular, I decided that it
was not necessary to consider any argument made by the City on the question of whether
the appellant's request was frivolous or vexatious. As discussed above, I have reviewed the circumstances under which the appellant
submitted his request, his behaviour throughout both the request and appeal stages and his
past behaviour in dealings with the City. Based on my own assessment of these
circumstances, I have concluded that his request is frivolous or vexatious. In my view, the
appellant's actions in the manner in which he has and is approaching the freedom of
information processes constitutes a clear abuse of the right of access. I find that to permit
him to continue his pattern of harassment and belligerence would so offend public policy
that I will, pursuant to the Commissioner's inherent supervisory authority under the Act,
remedy this abuse, regardless of anything that may have occurred at the request stage.
Because of my ultimate findings with respect to the primary issue, I have decided that it is
not necessary to address the appellant's claim that the FOIC and Clerk are in a conflict of
interest. Finally, it is noteworthy in the overall context of this appeal that any conflict arising between
the appellant and either of these other parties was generated by the appellant's behaviour
towards them and towards City staff and council members generally. There may well come
a time, if it has not already arrived, that there will be nobody at the City who the appellant
believes would be capable of dealing with him.
ORDER: 1. I uphold the City's decision that the appellant's request is frivolous or vexatious. 2. I confirm the conditions imposed by former Adjudicator Anita Fineberg in Order
M-947. 3. I impose the following additional conditions on the manner in which the appellant's
requests are to be processed. * the appellant is to specify the exact information or records he is seeking, if
possible, the location in which he expects the requested records to be found, and
any other information he believes may assist in locating responsive records; * the appellant is not to otherwise contact the City (verbally or in writing) with
respect to the processing of a particular access request and/or appeal, except and
unless the City contacts him first for clarification of his request; * the City is not required to respond to any communications from the appellant unless
it is in response to a properly filed access request (in accordance with the terms
of Order M-947) or it is in direct response to a request by the FOIC for
clarification from him; * if the appellant does not respond to a request by the City for clarification by
providing the clarification requested within a reasonable time frame as specified by
the City, the City may close his file as being abandoned. In this case, the City is
to send the appellant a letter stating that the file has been closed. * the appellant may appeal the City's decision to close the file to the IPC; * the appellant may appeal any other decision of the head to this office. 4. The appellant and/or the City may apply to this office at any time after one year has
expired from the date of this Order, to seek to vary the terms of paragraphs 2 and 3,
failing which the terms shall continue in effect indefinitely. 5. This office remains seized of this matter for whatever period is necessary to
ensure implementation of, and compliance with the terms of this order. Original signed by: Laurel Cropley, Adjudicator February 28, 2002
[ COMMENTS BY DON B. - ] |