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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

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.

    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.

    I find the appellant's request to be frivolous and vexatious in the circumstances and dismiss this appeal.

    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.

    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.

    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.

    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.

    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, 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.

    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.

    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 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.

    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.

    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 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.

    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.

    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 appeale