Complaint about decision by the New Zealand Police to refuse requests under section 18(h) of the Official Information Act 1982 (OIA)—Complainant had a long running grievance with Police making multiple OIA requests over a number of years—Chief Ombudsman formed the opinion that the Police could refuse the requests under section 18(h) based on the volume and nature of the complainant’s correspondence
Background
The complainant had a long-running grievance with the New Zealand Police (Police). This stemmed from the complainant’s belief that the Police had not done enough to help them after reporting a crime. The complainant was a New Zealand citizen living overseas.
The Police told the complainant it would take no substantive action, as the alleged offending had no connection to New Zealand. The complainant complained to the Independent Police Conduct Authority, which found no fault with the Police’s actions.
The complainant remained unhappy and frequently emailed the Police, the Ombudsman and other review agencies, government Ministers, and others about their grievance with the Police.
The complainant made frequent complaints to the Police as well as multiple requests for official information. The information requests were for things such as:
- names and contact details of Police staff;
- internal records of what the Police had done with various emails the complainant had sent; and
- information about the Police structure or relating to negative publicity about the Police.
Eventually, the Police refused a number of these requests under section 18(h) of the OIA, on the grounds they were vexatious.
The complainant asked the Chief Ombudsman to investigate the Police’s decision.
Investigation
Section 18(h) of the OIA says an agency may refuse a request if it is frivolous or vexatious, or it seeks trivial information.
In this case, the Ombudsman did not look at each request in isolation. Instead, the Ombudsman considered the complainant’s collective requests. The Ombudsman considered the history and context of the requests, the intention and purpose of the requests, the administrative demand, and the effect on Police staff.
History and context of the requests
Over a few years the complainant sent the Police thousands of emails. Some contained OIA requests, but most did not. The complainant stated they were on a ‘mission’ to hold Police staff accountable for what they saw as the Police’s ‘neglect of duty’ in its handling of their case. Each time the complainant identified someone at the Police who did not do what they wanted, the complainant seemingly added this person to the list of Police staff they were complaining about.
This eventually escalated to the complainant sending the Police, the Ombudsman, and government Ministers a letter setting out the complainant’s grievance against the Police generally and demanding the dismissal and/or disciplining of dozens of Police staff.
The Police put the complainant on a communications plan, requesting that the complainant direct their emails to a central point, as a way of managing the frequency and volume of their emails. The Police also told the complainant they would not respond to repetitive emails about issues that had already been addressed.
The Ombudsman noted the Police had not been quick to use section 18(h) to refuse the complainant’s large number of requests over the years. In its first decision to refuse a request under section 18(h), the Police provided the complainant with a detailed explanation of why it was refusing the request on that ground. The Police’s subsequent section 18(h) decisions followed the same reasoning.
The Ombudsman considered the intensity of the complainant’s sense of grievance was out of proportion to the actual issue that started everything. The Ombudsman was satisfied the Police were entitled to give the history and context significant weight when refusing requests under section 18(h), given the volume and subject matter of the complainant’s requests.
Intention and purpose of the requests
If a requester has explicitly stated their intention is to cause disruption, irritation or distress to an agency or its staff, then the request is likely to be considered ‘frivolous or vexatious’. A request may also be considered ‘frivolous or vexatious’ if the available evidence suggests that the requester does not genuinely need or want the information but is instead requesting that information as a means of causing disruption, irritation or distress to an agency or its staff.
The Ombudsman considered the complainant had made it clear the intention of their ongoing OIA requests was to cause disruption, irritation or distress to the Police. The complainant told the Police they were ‘petty enough to drip-feed OIA request[s]…to ‘repay’ the immense frustration’. The complainant said they would continue to make OIA requests and lay complaints until the Police did what they wanted.
Administrative demand and effect on Police staff
The complainant had sent thousands of emails to the Police about their grievance. It was difficult to estimate the administrative impact on the Police of the complainant’s OIA requests, as many emails were not requests for information but instead complaints or demands for action. However, it was clear the complainant had made many dozens of OIA requests to Police over several years.
The Ombudsman considered the volume of OIA requests sent to the Police required a disproportionate amount of resource to respond to. As well as affecting the Police’s ability to respond to information requests from other people, the volume and content—including allegations of corruption, incompetence, and neglect of duty against individuals and the agency—had a significant effect on staff handling the requests.
The Police had taken steps to try and manage the administrative burden before resorting to refusing the requests under section 18(h). This included directing the complainant to a central contact point and asking them not to repeat requests they had already made. However, the complainant did not adhere to what the Ombudsman considered to be reasonable requests from the Police, and continued to email numerous Police staff and make repeat requests for information.
As well as the impact on Police resources, the Ombudsman considered the effect the requests had on Police staff, in particular requests for staff contact details. The complainant demonstrated that once they had obtained the email address of a Police staff member, they would then email them directly with allegations of their colleagues’ corruption or incompetence. When these Police staff did not respond in the way the complainant liked, they would add them to the list of Police staff they considered corrupt or incompetent.
The Ombudsman agreed the volume and nature of the complainant’s correspondence had a negative effect on Police staff. The manner and intensity in which the complainant had pursued their grievance crossed the line a long time ago.
Outcome
The Ombudsman considered the pattern of the complainant’s requests was vexatious and that, more specifically, the particular requests subject to this investigation were vexatious. The disparaging and derogatory manner of the complainant’s correspondence with the Police supported this conclusion.
The Ombudsman said the OIA provides for people to request information held by an agency. It is not a device for interrogating that agency. The Ombudsman also said the Police had been slow to use section 18(h) to refuse the complainant’s requests, and this was commendably restrained in the circumstances.
The Ombudsman formed the opinion that the Police could refuse the requests under section 18(h) of the OIA. The Ombudsman considered the requests were an abuse of the right to request official information due to their nature and frequency, the intention behind them, and the disparaging and derogatory nature of the complainant’s correspondence.
This case note is published under the authority of the Ombudsmen Rules 1989 opens page in this tab. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.