Request for internal and external correspondence relating to OIA requests
Request not frivolous or vexatious—information not trivial—agency should have met or at least talked with the requester before changing its practice of providing this type of information
In September 2015, the Ministry of Justice refused to comply with a request for information that it said lacked due particularity. The requester (a parliamentary researcher) submitted a follow-up request for internal and external correspondence about the original request.
In April 2016, the Ministry refused another OIA request by that requester under section 18(d), on the grounds that the information would soon be publicly available. The requester again submitted a follow-up request for internal and external correspondence about the original request.
Both of the follow-up requests were themselves refused on the basis that they were frivolous or vexatious, or the requested information was trivial, and the requester complained to the Chief Ombudsman.
The requester noted that the Ministry had complied with previous similar requests; that it had not attempted to contact him before deciding his requests were vexatious; and that his purpose in making the follow-up requests was to understand how the original requests had been dealt with.
The Chief Ombudsman notified the complaint to the Ministry, which attempted to resolve it by doing a number of things. First, it apologised for refusing the follow-up requests as vexatious if, in fact, the requester’s intention had been to understand how his original requests were dealt with. It provided a further explanation of how both the original requests had been dealt with. It also offered to undertake an internal review in the event the requester was dissatisfied with the Ministry’s reasons for refusing any future requests for official information. However, the Ministry still declined to provide the actual information sought by the requester. The Chief Ombudsman therefore proceeded with his investigation, seeking a report on the Ministry’s reasons for refusal.
The Ministry maintained that the requests were frivolous or vexatious. Relevant factors in the Ministry’s decision were that:
The requester had a practice of making follow-up requests whenever the Ministry refused an OIA request or asked him to refine it. The Ministry provided a further two examples, including one (a request for the name, qualification and length of service of an official), which the Ministry construed as ‘a thinly veiled attack on the person who made the decision to ask him to refine the request’.
The fact that the requester made the follow-up requests within 5 and 6 minutes of the Ministry’s response to the original requests, indicating a lack of any real thought or consideration before making the requests.
The fact that the Ministry had already taken care to explain the reasons for its decisions on both requests, and that the requested documents would add little, if any, further insight.
Noting the Ministry’s apparent disbelief that the requester was in fact motivated by a desire to understand how his original requests were dealt with, the Chief Ombudsman arranged for his staff to meet with the requester. As a result of that meeting, he formed the provisional opinion that the follow-up requests had in fact been made in good faith.
The requester genuinely wanted to know how his requests had been handled. The purpose or value of such requests was evidenced by the fact that similar requests had been made by other parliamentary researchers. The speed with which the requests were submitted did not constitute sufficient evidence that the requester was abusing his right to request official information.
The Chief Ombudsman also did not consider that the information requested was trivial. It could certainly have assisted the requester to understand how his original requests had been handled, and in particular, why one of those requests caused confusion due to the lack of particularity. The Chief Ombudsman considered that the Ministry should have discussed the matter with the requester before resorting to outright refusal.
In response, the Ministry argued that the Ombudsman’s focus on bad faith and abuse of rights was too narrow. In addition to the intent or motive of the requester, it was necessary to consider the objective value of the request, and its effect on the agency. While the Ministry accepted that it could be a legitimate for a requester to seek internal communications about the processing of a previous OIA request, the conduct and context in this case led it to the view that these particular requests were frivolous or vexatious. These factors included:
the speed with which the follow-up requests were submitted;
the fact that the requester had now submitted a total of five such follow-up requests in a 14-month period (this type of request appeared to have developed into a ‘reflexive habit’ on the part of the requester);
the fact that reasons for the decisions had already been provided and release of the information at issue would not materially add to the requester’s understanding of these;
the fact that, in one of the previous instances, the requester appeared to be challenging the competence of the official who dealt with his request by seeking their name, qualifications and experience, creating further doubt as to the genuineness of the requests.
The Ministry also said that it did not typically have the advantage of meeting its requesters in person, and so needed to assess their requests based on the content and context of their written communications.
The Chief Ombudsman rejected this assertion, noting that the requester worked in central Wellington and invited contact in the event that the intent of his requests required clarification. In the Chief Ombudsman’s opinion, it would have been simple and expedient to have met or at least talked with the requester before the Ministry changed its practice of providing this type of information. The Chief Ombudsman formed the final opinion that the requests in this case were not frivolous or vexatious, and the information was not trivial, and recommended disclosure of the information at issue.
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.