Privacy Commissioner - Te Mana Matapono Matatapu

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Vexatious, frivolous, trivial

Section 29(1)(j) allows an agency to withhold personal information from the individual concerned if the request is frivolous or vexatious, or the information requested is trivial.

Frivolous or vexatious

It is not common for agencies to be able to withhold information on this ground. However, it is an important protection against requests that are made for malicious reasons or other improper reasons.

An agency cannot use this withholding ground simply because a requester is an annoying or even malicious individual. Unpleasant individuals are still entitled to access their personal information. It is the request that needs to be vexatious or frivolous before the information can be withheld.

The test for vexatiousness is essentially:

• Is the requester only making the request to cause trouble, or might there be a genuine reason for the request?

Factors possibly indicating vexatiousness include:

• Multiple requests for the same information without any apparent reason for this;
• A history of using information from one request to demand more information - for instance, one complaint leading to another, and another;
• Unreasonably abusive or aggressive behaviour and no apparent genuine need for the information;
• Clear intention to use the request to divert the agency's resources, upset people etc.

The information is trivial

It is even less common for an agency to refuse a request on the ground that the information concerned is trivial. Agencies should be slow to use triviality as a reason for refusal - what seems trivial to the agency may be important to the requester.

Factors possibly indicating that the information is trivial include:

• It is a very small item of information contained within a large amount of information (this may also mean the information is not readily retrievable);
• It is a seemingly innocuous piece of information that the requester already knows or has;
• The information does not really say anything about the requester. For example the requester's name may be in the subject line of an email, but the email is actually about something else, or involves trivial administrative arrangements such as setting a meeting time with the requester.

References

Privacy Act 1993
Section 29(1)
An agency may refuse to disclose any information requested pursuant to principle 6 if -

(j) The request is frivolous or vexatious, or the information requested is trivial.

Case Notes:
Case Note 18109 

HRRT/Court cases: