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During the past year, the Commissioner authorized five different public bodies
to disregard repetitious or systematic requests from particular applicants. The
public bodies that requested and were granted the Commissioner's authorization
were: BC Hydro; the Ministry of Employment and Investment; the Vancouver School
Board; BC Transit*; and the Ministry of Agriculture, Fisheries, and Food. The
terms of the authorizations to disregard requests for records varied in each
circumstance, but the common elements were that the applicants were denied: (i)
the right to responses by a public body with respect to all outstanding
requests for records relating to a particular matter, and (ii) all future
requests of any kind for a period of one year.
There was only one section 43 authorization issued by the Commissioner in
previous fiscal years. It was granted to the British Columbia Lottery
Corporation in 1994.
* The section 43 authorization granted to BC Transit has been challenged by
the applicants in an application to the British Columbia Supreme Court for
judicial review of the authorization. As of the date of compilation of this
report, the court had not delivered its decision.
There are three sample section 43 authorizations set out below, listed by date
of the authorization. The names of applicants and third parties are severed to
protect their privacy. The text of all section 43 authorizations issued by the
Commissioner can be located on the Office's web site at: http://www.oipc.bc.ca.
August 23, 1996
In the Case of an Application for Authorization to Disregard Requests from [a
Respondent] under Section 43 of the Freedom of Information and Protection of
Privacy Act (the Act) by [the] Assistant Deputy Minister, Ministry of
Employment and Investment
I have had the opportunity of reviewing the application under section 43 of the
Freedom of Information and Protection of Privacy Act (the Act) for
authorization to disregard section 5 requests made by [the respondent].
Section 43 gives me the power to authorize a public body to disregard requests
under section 5 that, because of their repetitious or systematic nature, would
unreasonably interfere with the operations of the public body, in this case the
Ministry of Employment and Investment (the Ministry).
Since the purpose of the Act is to make government bodies more accountable to
the public by giving the public a right of access to records, authorization to
disregard requests for records must be given sparingly and only in obviously
meritorious cases. Granting section 43 requests should be the exception to the
rule and not a routine option for public bodies to avoid their obligations
under the legislation.
Based on a detailed review of the submissions and the response of [the
respondent], the following factors have led me to decide that [the
respondent]'s access requests are repetitious, systematic, and unreasonably
interfere with the operations of the Ministry:
2. The Supreme Court of British Columbia's dismissal of [the respondent]'s
petition to judicially review the order of the Chief Gold Commissioner,
[date].
3. The evidence that [the respondent] is trying to use the Act to prove that
the determination made against [the respondent] by the Chief Gold Commissioner
was wrong and that the Chief Gold Commissioner, along with other Ministry
staff, were biased and acted improperly and criminally.
4. [The respondent] has made 43 percent of the total number of requests for
records to the Ministry over the last 2.5 years for a total of 145 requests up
to July 25, 1996. This includes 40 requests between June 13, 1996 and July 25,
1996.
5. The Ministry conservatively estimates that it has spent 500 hours responding
to [the respondent]'s requests and that to answer [the respondent]'s
outstanding requests would require an additional 120 hours.
6. The evidence that [the respondent] is habitually, persistently, and in bad
faith making excessive and irrational requests and demands on the
Ministry.
7. The evidence that responding to [the respondent]'s requests has dramatically
limited the time that the Ministry's staff can devote to requests from other
applicants.
8. The evidence that [the respondent] is not using the Act for the purpose for
which it was intended and that any further continuations of these actions could
place the Act in great disrepute.
9. The evidence that the Ministry has exercised considerable restraint and has
made every effort to assist [the respondent] and to respond without delay to
[the respondent] openly, accurately, and completely.
10. Finally, I reject the submission of [the respondent] that my Office is
biased against [the respondent] in any way or in some kind of conflict of
interest.
Therefore, I authorize the Ministry to disregard the following:
2. All future requests for records which relate to mineral claims of [the
respondent], the dispute with [third parties], and the allegations of
wrongdoing by the Ministry.
3. All requests for any kind for a period of one year by [the respondent]. The above apply to requests for records made by [the respondent], [four named
parties associated with the respondent], or any other request in which [the
respondent] is the "directing mind."
August 30, 1996
In the Case of an Application for Authorization to Disregard Requests
from [a Respondent] under Section 43 of the Freedom of Information and
Protection of Privacy Act (the Act) by the Vancouver School Board (VSB)
I have had the opportunity of reviewing the application of the Vancouver School
Board under section 43 of the Freedom of Information and Protection of
Privacy Act (the Act) for authorization to disregard section 5 requests
made by [the respondent].
Section 43 gives me the power to authorize a public body to disregard requests
under section 5 that, because of their repetitious or systematic nature, would
unreasonably interfere with the operations of the public body, in this case the
Vancouver School Board.
Since the purpose of the Act is to make government bodies more accountable to
the public by giving the public a right of access to records, authorization to
disregard must be given sparingly and only in obviously meritorious cases.
Granting section 43 requests should be the exception to the rule and not a
routine option for public bodies to avoid their obligations under the
legislation.
Based on a review of the submissions of the Vancouver School Board, its
documentation of each access request made by [the respondent], and
[the
respondent]'s extensive response to the Vancouver School Board's submissions,
the following factors have led me to decide that [the respondent]'s access
requests are repetitious, systematic, and unreasonably interfere with the
operations of the School Board:
2. [The respondent]'s access requests comprised over 60 percent (21 of 34) of
the formal requests to the Vancouver School Board in 1995 and 75 percent (9 of
12) of the requests received so far in 1996. The Vancouver School Board has
already responded to 6 of the latter. Overall, [the respondent] has made 65
percent (30 out of 46) of the access requests to the Vancouver School Board in
1995-96. [The respondent] submitted another request on July 24, 1996.
3. My conclusion based on the evidence submitted by the Vancouver School Board
and [the respondent] is that [the respondent] is not using the Act for the
purposes for which it was intended and that [the respondent] is not, indeed,
acting in good faith. (See Order No. 110-1996, June 5-1996, pp. 5-6)
4. My conclusion based on the evidence submitted by the Vancouver School Board
and [the respondent] is that [the respondent] is using the Act as a weapon
against the Vancouver School Board after an episode in the workplace that has
left [the respondent] unhappy and preparing to arbitrate a claim of unjust
dismissal.
5. The evidence submitted by the Vancouver School Board is that the systematic
and repetitious nature of [the respondent]'s requests to the Vancouver School
Board and of [the respondent]'s appeals at its responses is unreasonably
interfering with the operations of the Vancouver School Board.
6. My conclusion based on the evidence submitted by the Vancouver School Board
is that [the respondent] is habitually, persistently, and in bad faith making
excessive and irrational requests and demands on the Vancouver School Board.
For purposes of this conclusion, I have adopted the tests of reasonableness and
abuse of process set out by Ontario Information and Privacy Commissioner, Tom
Wright, in Order M-618, October 18-1995, involving the London Police Services
Board.
7. The evidence submitted by the Vancouver School Board that responding to [the
respondent]'s requests has dramatically limited the time that the Vancouver
School Board's staff can devote to requests from other applicants under the
Act.
8. My conclusion based on the evidence submitted by the Vancouver School Board
and [the respondent] is that [the respondent] is not using the Act for the
purpose for which it was intended and that any further continuation of these
actions could place the Act in disrepute. The Act must not become a weapon for
disgruntled individuals to use against a public body for reasons that have
nothing to do with the Act.
9. The evidence submitted by the Vancouver School Board is that it has
exercised considerable restraint and has made every effort to assist [the
respondent] and to respond without delay to [the respondent] openly,
accurately, and completely.
10. Finally, I reject the submission of [the respondent] that my Office has
treated [the respondent] unfairly. On the basis of the materials submitted by
[the respondent], I have concluded that my staff has acted appropriately and
fairly in its administration of the application.
Therefore, I authorize the Vancouver School Board to disregard
the
following:
2. All future requests for records which relate to the Carnegie Community
Centre and the Carnegie Adult Learning Centre.
3. All requests of any kind by [the respondent] for a period of one year.
March 7, 1997
In the case of an Application for Authorization to Disregard Requests from [the
respondent] under Section 43 of the Freedom
of Information and Protection
of Privacy Act by the Ministry of Agriculture, Fisheries and Food
I have had the opportunity of reviewing the application of the Ministry of
Agriculture, Fisheries and Food under section 43 of the Freedom of
Information and Protection of Privacy Act (the Act) for authorization to
disregard requests made under section 5 of the Act by [the respondent].
Section 43 gives me the power to authorize a public body to disregard requests
made under section 5 that, because of their repetitious or systematic nature,
unreasonably interfere with the operations of the public body, in this case the
Ministry of Agriculture, Fisheries and Food.
Since the purpose of the Act is to make government bodies more accountable to
the public by giving the public a right of access to records, authorization to
disregard requests must be given sparingly and only in obviously meritorious
cases. Granting section 43 requests should be the exception to the rule and not
a routine option for public bodies in meeting their obligations under the
legislation.
Based on a review of the submissions of the Ministry of Agriculture, Fisheries
and Food (the Ministry), its documentation of each access request made by [the
respondent], and [the respondent's] response to the Ministry's submissions, the
following factors have led me to decide that [the respondent's] access requests
are repetitious, systematic, and unreasonably interfere with the operations of
the Ministry:
2. Since August 1994 [the respondent] has made a total of 62 requests to the
Ministry. They deal with [the respondent's] perception of [the respondent's]
unfair treatment, harassment, or discrimination by the Ministry. I accept the
Ministry's judgment that [the respondent] "clearly appears to be fishing for
records in an attempt to confirm
[the respondent's] allegations or
suspicions of wrongdoing." (Submission of the Ministry, para. 2.07) I further
agree that these requests are repetitious in nature. See Order No. 137-1996,
December 17, 1996, p. 10.
3. The Ministry has worked extensively with portfolio officers from my Office
in mediation with [the respondent]. These have largely proven unsuccessful.
[The respondent] has apparently requested reviews or made complaints to my
Office on 14 occasions, 7 of the issues which have resulted in Orders by me and
3 of which remain open.
4. After January 16, 1997 mediation efforts of the application for the
section 43 ruling involving my Office, [the respondent], and the Ministry failed.
5. On February 7, 1997 [the respondent] requested the Ministry to freeze all
e-mail backup tapes and any other form of record pending an investigation [the
respondent] has requested into the e-mail system. I have previously
issued several Orders on this type of issue, one of them involving [the
respondent]. See Order No. 121-1996, September 3, 1996.
6. The evidence submitted by the Ministry that [the respondent] has made
systematic requests, including directing requests be submitted under a variety
of names.
7. The evidence that [the respondent] is trying to use the Act as a weapon
against the Ministry in retaliation for decisions that it has made involving
[the respondent]. (Submission of the Ministry, para. 2.10) See Order No.
110-1996, June 5, 1996, pp. 3, 4; Order No. 137-1996, December 17, 1996, pp.
10, 13.
8. I agree with the submission of the Ministry that it should not be required
to carry out the tedious, time-consuming, and costly task of responding to [the
respondent] under the Act, when it is clear that [the respondent] is habitually
and persistently making excessive and irrational requests and demands on the
Ministry. (Submission of the Ministry, para. 2.15)
9. I agree with the Ministry's submission that [the respondent] is not using the Act for the purposes for which it was intended and that any further continuation of these actions by [the respondent] places the Act, unequivocally, in great disrepute. (Submission of the Ministry, para. 2.10).
10. In summary, I find that the access requests of [the respondent] are
repetitious, systematic, and unreasonably interfere with the operations of the
Ministry.
Therefore, I authorize the Ministry to disregard the following with respect to
[the respondent]:
2. All future requests for records which relate in any way to past
supervisors, co-workers, and the Personnel Branch of the Ministry.
3. All requests of any kind for a period of one year to end one year after
the date of this decision.
Procedural Objection
[The respondent] sought a postponement of this inquiry. I refused to do so
after considering [the respondent's] reasons and the objections of the
Ministry. Upon request, I expanded on my reasons for this decision in a
letter to [the respondent] dated February 18, 1997. [The respondent's] view is
that my decision on this matter was not fair and impartial. I disagree.
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