Request for information refused due to offensive and repetitive nature

Frivolous or vexatious
Legislation:
Official Information Act 1982
Section 18
Legislation display text:
Official Information Act 1982, s 18(h)
Agency:
New Zealand Police
Ombudsman:
Hon Anand Satyanand
Case number(s):
W36125
Issue date:
Language:
English

Number of requests made to Police over several years—recent request considered frivolous and vexatious—refused under s 18(h) in light of tone of correspondence and previous similar requests—requester had genuine interest in obtaining the requested information—requester agreed to withdraw the abusive remarks and redraft his requests purged of derogatory and intemperate comment

The requester in this case had an acrimonious relationship with the Police over several years in the course of which he made a number of requests for official information. Some of those requests had been answered, but latterly the Police had refused to respond to some of his correspondence, taking the view that his letters were offensive and his requests were for the same or similar information to that already dealt with in earlier correspondence. They declined one such request as frivolous or vexatious and the requester complained to the Ombudsman.

The Ombudsman confirmed that an official information request may properly be described as frivolous or vexatious when it amounts to an abuse of the right to make a request, rather than a legitimate exercise of that right.

In looking at case law relating to the striking out of proceedings on the ground of being frivolous and vexatious, it is not enough for proceedings to have disturbed, troubled or annoyed the other party. It must be shown that they were issued with that intent. In other words, the proceedings must be found to carry overtones of impropriety, and such overtones may be found in the surrounding circumstances of a case or in the history of the relationship between the parties.

The Ombudsman referred to a case in which the court had been tempted to strike out proceedings because the statement of claim was a ‘diatribe’ of ‘scandalous and grossly intemperate allegations’ against a judge and disputes tribunal referee.[1] However, it stopped short of doing so, and instead permitted the plaintiff to lodge a redrafted statement of claim purged of scandalous material.

Similar principles apply in the OIA context. An intemperate and abusive request or one that has a history which lends weight to a vexatious intent may also open the door to a conclusion that a request is ‘frivolous or vexatious’. In this case, the language and nature of the requests tended to the view that they were ‘frivolous or vexatious’. On the other hand, from discussions with the requester it became clear that his intent was not to be troublesome or annoying to the Police. He had a genuine interest in obtaining the requested information.

Taking a steer from the cautious approach adopted by the courts, the solution proposed and accepted by the parties was that the requester would withdraw the abusive remarks and redraft his requests purged of derogatory and intemperate material. Had the requester been unwilling to do so, ‘the inference that the motive for his request was frivolous or vexatious would be difficult to avoid’.

This case note is published under the authority of the Ombudsmen Rules 1989. 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.


[1] Van der Kaap v Attorney-General & Ors (1996) 10 PRNZ 162.

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