Information Commissioner's Briefing on Frivolous or Vexatious Requests
The briefing by the Information Commissioner covers topics such as the purpose of the PATI Act, administrative denials, Section 16(1)(e) allowing refusal of requests, and considerations for denying requests as frivolous or vexatious. The focus is on the nature of the request rather than the requester, emphasizing that a contentious relationship alone does not classify a request as frivolous or vexatious.
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Presentation Transcript
INFORMATION INFORMATION COMMISSIONER S BRIEFING COMMISSIONER S BRIEFING Thursday, 17 September 2020 Virtual Briefing
AGENDA AGENDA 10:00 10:05 10:05 10:55 Welcome & Introduction Frivolous or vexatious requests s. 16(1)(e) Wrap-up 10:55 11:00
Purposes Purposes of PATI Act (section 2) of PATI Act (section 2)
Administrative Administrativedenials Logistical or administrative reason for denial Does not consider whether the records contain any exempt information denials
Section 16(1)(e) Section 16(1)(e) A public authority may refuse to grant a request if the request is, in the opinion of the head of the authority, frivolous or vexatious.
Decision 32/2019, Ministry of Health Headquarters, explains considerations for denying a request as frivolous or vexatious.
4 aspects of Section 16(1)(e) 4 aspects of Section 16(1)(e) may refuse discretionary focus is on nature of request, not requester opinion of the head of the authority meaning of frivolous or vexatious
Discretionary ground for denial Discretionary ground for denial Information Officer may decide to process the records that are responsive to the request, even if that request is frivolous or vexatious.
Focus is on the request, not the Focus is on the request, not the requester: requester: Perhaps most challenging aspect for public authority Long history or contentious relationship, alone, does not make request frivolous or vexatious
In the opinion of the head In the opinion of the head Key requirement: Information Officer must get head of authority s opinion Implications: referral to Information Commissioner under s. 44
In the opinion of the head In the opinion of the head - - logistics logistics Information Officer documents opinion and issues initial decision Head of authority issues initial decision Use approach most appropriate for your authority
Meaning of frivolous or vexatious: Meaning of frivolous or vexatious: Decision 32/2019 PATI s. 16(1)(e) identical to Irish Freedom of Information Act provision Not defined in the PATI Act
Meaning of frivolous or vexatious: Meaning of frivolous or vexatious: Not using dictionary meaning Frivolous plain meaning is not worthy of serious attention or having no reasonable ground or purpose
Meaning of frivolous or vexatious: Meaning of frivolous or vexatious: Vexatious plain meaning is causing vexation These definitions depend on perspective of individual, e.g., what is meaningful to one is frivolous to another
Meaning of frivolous or vexatious: Meaning of frivolous or vexatious: Plain meanings are incompatible with purposes of the PATI Act
Meaning of frivolous or vexatious: Meaning of frivolous or vexatious: Information Commissioner applies a technical definition from legal context, abuse of process
Meaning of frivolous or vexatious: Meaning of frivolous or vexatious: Abuse of PATI processes occurs when a request is made in bad faith or when the requester s pattern of conduct amounts to an abuse of process.
Bad faith Bad faith Made with illegitimate or dishonest purpose No pattern of conduct needed Refusal to cooperate with public authority might indicate bad faith
Bad faith Bad faith Note that accountability, embarrassment or disadvantaging the public authority do not amount to bad faith
Pattern of conduct Pattern of conduct Incidents of related or similar requests that amount to an abuse of process Focus is still on the requests being the basis for the pattern of conduct
Pattern of conduct Pattern of conduct factors to consider Actual number of requests and appeals filed Nature and scope of the requests Using the PATI process to revisit an issue already addressed factors to consider
Pattern of conduct Pattern of conduct factors to consider Purpose of the request, if shared, is seeking to accomplish something unrelated to accessing public records Sequencing of PATI requests, e.g., increase following initiation of court proceedings factors to consider
Pattern of conduct Pattern of conduct factors to consider factors to consider Intent of requester, if known, e.g., to harass government or to break or burden the system
Pattern of conduct Pattern of conduct factors to consider factors to consider Not a conclusive list other factors could include public interest value of PATI request
Other considerations Other considerations Remember public authority s duty to assist Familiarise yourself with other grounds for refusal
Duty to Assist (July 2018 IC Briefing) Duty to Assist (July 2018 IC Briefing) Failure to effectively assist requester can lead to requester making multiple requests to meet their information needs. This does not lead to a frivolous or vexatious request.
Other grounds for refusal Other grounds for refusal Focus on the request and the records it may be more efficient to reach decision on disclosing or withholding the record or part of it
Other grounds for refusal Other grounds for refusal A different administrative ground for denial may be available Look carefully at requests with multiple parts and treat each separately
Remember Remember Frustration, annoyance or seeking to avoid embarrassment are not grounds for denying a PATI request Focus your decision making on the request and the records to ensure denial is justified
Wrap Wrap- -up Decisions published on www.ico.bm Monthly Roundups highlight learning lessons ICO Guidances published on www.ico.bm Contact us at 543-3700 or info@ico.bm up
