No, you're vexatious.

By Gabriella Razzano

A refusal ground lies buried in the Promotion of Access to Information Act (PAIA) that permits public bodies to refuse a request for information if they believe it to be “manifestly frivolous or vexatious”. In using this ground for refusal, I believe a public body often reveals its own gross failings, rather than those of the requester – and we have just been exposed to such a case in point by the City of Cape Town.

ODAC have been approached by the Delft Integrated Network, a community group focused on combating social issues in the Delft area, to assist with a PAIA request refused by the City of Cape Town at both the appeal and request stage on the basis they deemed it to be ‘vexatious’. The foundation for that refusal was as follows:

“We consulted with the relevant department to whom this request relates and they advised that the records which you requested have been provided to you. According to the department, you were part of the Project Steering Committee and had access to all the information which you were requesting”.

The request was sent by a Mr Louw on behalf of the Network – he had, in his individual capacity, been a member of the Project Steering Committee (though had declined to attend some sessions when the process degenerated). So how can we best unpack the City’s reasoning? The first thing to note is that there is an obvious difference to claiming someone has records (sentence one) and saying someone has access to records (sentence two). That I have access to buying ibruprofen, doesn’t mean I have ibruprofen in my purse. Further, there is an obvious difference to a single person having access to something – as opposed to a group of people. That Mr Louw may have had an opportunity to access documents before, doesn’t mean the community of Delft are excluded from access to those documents for the rest of time. More importantly perhaps, it should be obvious that ‘access’ does not equate to ‘possession’.

When I look at the nature of the first request it’s clear to me that the request was very broad – and I think this is probably what the City is actually responding to. However, its breadth reveals another flaw – can the City legitimately argue that the requester’s had access to every single document listed? Their blanket application of the refusal to the request sheds doubt on the level to which they applied their mind to the particulars of each record sought.

And why am I unpacking the facts so cautiously? Because I think we need to be very careful about allowing this kind of refusal ground to be readily used. A recent post on a United Kingdom-based blog on public administration noted that refusing access on the basis of a request being vexatious could be an evasive measure taken by public servants to write off their responsibilities to the public and avoid complaints. This is not to say vexatious refusals are never with a basis – there is obviously a need to prevent the abuse of a progressive law to harass public agencies.

But what does frivolous or vexatious mean in the South African Act? Klaaren and Currie (2002) note that its meaning in this context is “indicating a desire to prevent misuse of the Act, an abuse of the rights granted by the Act for purposes others than those that the Act seeks to achieve”. Looking at our case then, knowledge that a requester already holds the records could potentially be envisioned as an abuse of the Act (a dicta to this was seen in a decision by the Irish Information Commissioner Mr ABK and the Eastern Health Board, Case 9901). However, it is clear from their own refusal that they are not alleging possession – they merely claim an individual within the group of applicants potentially had ‘access’. When we consider that the main motivating impetus behind the Act is to make records accessible by the public in its entirety, attempts to obtain possession for public disclosure of the information would surely never be determined as ‘vexatious’? Certainly, attempts to demonstrate that the request was manifestly vexatious would immediately be rebutted by the blanket nature of the refusal, which failed to break down all the records requested, and precisely how the office can be sure the requester’s had access to each record in and of itself.

And for me there is an even more profound problem: I suspect the City have failed to meet their duty to assist requesters as demanded by section 19. The Delft Integrated Network is a community struggling to find answers. They attempted to articulate their questions as best they could; they paid their request fees; they went through the process of following up their requests and seeking outside extra assistance; and complied fully with the requirements when they submitted their internal appeal. And they were met with a blanket, and seemingly inappropriate, refusal that implies strongly that the sole reason for refusal was that the request was simply not ‘perfect’ enough.

If this is the attitude taken by public agencies, what hope is there ever that the broader public will be able to use PAIA to request information without legal assistance? Because we are most concerned with the needs of the community, I have taken a practical decision to assist in the resubmission of a request that is a bit more ‘refined’ in the hopes of getting the information needed.  Regardless, application of the Act by agencies in a manner that focuses on form over substance is a slap in the face of the original ambitions to empower all citizens that motivated the passage of PAIA. If vexatious means causing unnecessary frustration and worry, then I think I know who was vexatious in this story – and it wasn’t the Delft Integrated Network.