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Cite as: [2014] IEHC 479
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Judgment Title: Kelly -v- The Information Commissioner Neutral Citation: [2014] IEHC 479 High Court Record Number: 2013 325 MCA Date of Delivery: 07/10/2014 Court: High Court Composition of Court: Judgment by: O'Malley Iseult J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 479 THE HIGH COURT Record No: 2013 325 MCA IN THE MATTER OF THE FREEDOM OF INFORMATION ACTS 1997 - 2003 Between/ PATRICK KELLY Appellant And
THE INFORMATION COMMISSIONER Respondent Judgment of Ms Justice Iseult O'Malley delivered the 7th day of October, 2014 Introduction 2. The central issue raised by the appellant is whether the respondent correctly exercised her jurisdiction under that provision. He argues that she did not correctly interpret the phrase "frivolous or vexatious". 3. The appellant also asserts that the respondent breached his right to fair procedures in that she is alleged to have heard representations from UCD "behind his back". 4. An issue has also been raised as to the authority of the principal deponent on behalf of the respondent to make affidavits, in circumstances where the Information Commissioner who made the decision under consideration moved on from that office and was replaced during the course of these proceedings. 5. The respondent wishes the court to determine these issues, although maintaining that there is as a matter of law no right of appeal against the finding in question. 6. The appellant also seeks an order directing the respondent to display on the official website of the Information Commissioner a copy of an order made by Herbert J. on the 16th April, 2008 in proceedings entitled Kelly v Information Commissioner 2006/40 MCA. This relates to an order made on consent, by which the Court declared invalid a decision of the respondent on the basis that the procedure adopted by the respondent had been unfair. 7. UCD was originally a notice party to the present appeal. By order of O'Neill J made on the 20th January, 2014 the proceedings, in so far as UCD was concerned, were dismissed as being frivolous and vexatious. Background 9. In 2001 the appellant applied for a place in UCD on a Masters in Social Science (Social Worker) degree course ("the course"). He was not offered a place and made a complaint to the Equality Tribunal of discrimination on grounds of gender. Meanwhile he was offered and accepted a place on a similar course in Trinity College. It appears from the correspondence in this case that over the years the appellant made a large number of applications to Trinity under the Act, which are referred to below. 10. The appellant was unsuccessful before the Equality Tribunal and on appeal in the Circuit Court. He was also largely unsuccessful in extensive related litigation before the High Court and in a reference to the European Court of Justice under Article 234 of the Treaty. 11. There are a number of written judgments of the superior courts dealing with the appellant's litigation against UCD. It is not necessary to refer to all of them, but it should be noted that in the course of the proceedings it was determined that the appellant was not entitled to disclosure of personal information relating to successful applicants for the UCD course. This was first determined by the President of the Circuit Court, and further dealt with, on appeal, by McKechnie J. who referred certain questions to the Court of Justice of the European Union and, on foot of the decision of that Court, ruled against the appellant. A motion by the appellant to set aside the ruling of McKechnie J. on grounds of alleged fraud was refused by Hedigan J. in a written judgment delivered on the 30th March 2012. 12. On the 29th January 2013, Hedigan J. granted an application by UCD for an order permanently staying all of the appellant's proceedings against it and prohibiting the appellant from issuing any further proceedings or applications arising out of his application for the place on the above- mentioned course. He did so on the basis that he was satisfied that the Court's processes had been
13. An appeal was lodged against Hedigan J.'s decision. So far as this court is aware it has not yet been disposed of. 14. While his litigation was ongoing the appellant commenced a series of applications under the Freedom of Information Acts. Relevant provisions of the Act 16. The objective of the Freedom of Information Act, 1997 is encapsulated in s.6(1) of the Act, which provides that:
18. Section 8(4) of the Act, as amended, provides that:
(a) any reason that the requester gives for the request, and (b) any belief or opinion of the head as to what are the reasons of the requester for the request, shall be disregarded. " 20. Where a decision to refuse a request is made by a person exercising a delegated function, the requester may apply to the head to review that decision. 21. Section 17, as amended, provides a procedure whereby a person may apply to a public body to amend a record containing personal information held by it relating to himself or herself, where such information is incomplete, incorrect or misleading. 22. Section 18, as amended, deals with the right to information regarding acts of public bodies where the requester is affected by such an act and has a material interest in a matter affected by the act or to which it relates. Where it arises, the requester's right is to be furnished with a statement of, firstly, the reasons for the act and, secondly, any findings on any material issues of fact made for the purposes of the act. 23. For the purposes of this section, a person has a material interest
(a) review a decision to which this section applies, and (b) following the review, may, as he or she considers appropriate, (i) affirm or vary the decision, or (ii) annul the decision and, if appropriate, make such decision in relation to the matter concerned as he or she considers proper, in accordance with this Act. 27. Subsection (6) deals with notification procedures, which are not in issue in this case. However, the wording of the subsection is significant.
(9) (a) The Commissioner may refuse to grant an application under subsection (2) or discontinue a review under this section if he or she is or becomes of the opinion that- (i) the application aforesaid or the application to which the review relates ("the application'') is frivolous or vexatious, (ii) the application does not relate to a decision specified in subsection(1), or (iii) the matter to which the application relates is, has been or will be, the subject of another review under this section. (b) In determining whether to refuse to grant an application under subsection(2) or to discontinue a review under this section, the Commissioner shall, subject to the provisions of this Act, act in accordance with his or her own discretion. "
The appellant's information requests 32. On the 10th April, 2012 the appellant applied to UCD for a statement of reasons for its refusal to disclose to him certain specific information it held on the successful applicants for the course. The response, affirmed in an internal review by UCD's Freedom of information Unit, was that the reasons for the decision to withhold the information had been set out in the course of the proceedings then pending before the courts and it would be inappropriate to deal with the matter outside of those proceedings. 33. The appellant applied to the respondent for a review of this decision on the 11th June, 2012. The respondent then invited submissions from both parties. UCD responded on the 11th December, 2012, stating inter alia that it had been confirmed by the courts that the records in question were not to be furnished to the appellant and that this fact was known to and understood by him. It considered that the reasons given to him for the refusal were intelligible and adequate. It was also submitted that, having regard to the judgments of Hedigan J and the Court of Justice, both of which were attached, the records were exempt from production to the appellant pursuant to s.22(1)(b) of the Act. This submission was not forwarded to the appellant. 34. On the 2nd December, 2012 the appellant applied to UCD for any records held by it
36. On the 8th February, 2013 the appellant applied to UCD pursuant to s.18 of the Act for
38. The context for this request was that the High Court had, apparently, been informed on the 29th January, 2013 by counsel for UCD that its bill of costs on foot of orders made prior to that date was in the process of going to taxation. It appears that the appellant did not receive a response within the statutory timeframe and on the 11th March he sought a review from the respondent. UCD contended that it had sent a response, dated the 11th March, which stated that as no bill of costs or notice of commencement of taxation had been served, there was no "act" on the part of UCD to which the section might apply. This decision was upheld after an internal review on the 5th April, 2013. The appellant then applied for a review of the decision. 39. UCD did not make submissions to the respondent on this matter. The respondent determined that it could be dealt with on the basis that UCD's position was as set out in the letters. 40. On the 15th March, 2013, the appellant applied to UCD for copies of its records
42. UCD then stated, by letter to the appellant dated the 3rd July, 2013, that there were no records answering to the request, apart from an email sent to the appellant by its solicitors on the 15th April, 2013 notifying him that the University was reserving its position in respect of all costs orders pending the outcome of his appeal to the Supreme Court. UCD did not make any submissions to the respondent in relation to this matter. 43. On the 11th April, 2013 the appellant applied to UCD, pursuant to the provisions of s.7(1) of the Act, for copies of records held by it which contained
45. On the 17th April, 2013 the appellant applied to UCD under the terms of s.17 of the Act for the amendment of
47. On the 19th April, 2013 the appellant applied to UCD for a statement of reasons, pursuant to s.18 of the Act, as to why it was "reserving its position" in respect of costs orders that, according to him, could not be affected by the appeal to the Supreme Court. 48. UCD did not respond to this request and on the 12th June, 2013 the appellant sought a review by the respondent. No submissions were made by UCD. Processing of the applications in the respondent's office 50. On the 5th April, 2013 the appellant applied to the respondent under s.34(2) of the Act seeking a copy of any submissions made by UCD and requested an opportunity to reply to any such submission. The response, sent on the 8th May, 2013, was that
52. Mr Rafferty informed the appellant that his preliminary view was that all of the reviews should be discontinued under s.34(9)(a)(i) of the Act on the basis that the applications to which the reviews related were "frivolous or vexatious". 53. The letter referred to the fact that the respondent had previously decided, in 2003, to discontinue a number of applications relating to Trinity College on the same basis. It further referred to the fact that the respondent had on that occasion explained her view that a request or application was to be considered frivolous or vexatious within the meaning of the Act
55. Mr Rafferty continued:
Having considered the nature of all seven applications, against the background of your ongoing prolonged litigation with UCD, I am of the view that the purpose of your requests is directed at an objective unrelated to the access process. If not submitted for their nuisance value, it seems to me that they were, at a minimum, submitted with a view to increasing the administrative burden which has been placed on UCD in dealing with your grievance dating back to 2002 and in prolonging the process of dealing with your grievance. In summary, therefore, I am of the view that your applications for review indicate a pattern of conduct which amounts to an abuse of the FOI process. For this reason, I propose to recommend to the Commissioner that these reviews should be discontinued under section 34(9)(a)(i) of the FOI Act on the basis that your applications or the applications to which the reviews relate are frivolous or vexatious. "
58. He objected to the reference to the Trinity College applications as relating to "a ten-year-old decision of the Information Commissioner involving a different prescribed body" which were not capable of constituting evidence in the current matter. 59. The appellant also stated that he had appealed the decision of Hedigan J. The decision of the respondent 61. It was stated by the respondent that in considering what course of action to take, she had had regard to the applicant's correspondence with UCD and with her office on all seven applications, including his submission in response to Mr Rafferty's letter. She had also had regard to correspondence between her office and UCD and to the High Court judgments referred to by Mr Rafferty. 62. The letter referred to previous decisions made by the respondent as to the criteria used by her in determining that an application was frivolous or vexatious.
64. The reference by Mr Rafferty to the 2003 decision was explained as being simply a reminder of the respondent's approach to such matters, and it was stated that it was not to be understood as meaning that the decision was evidence relied upon by Mr Rafferty in the cases now in issue. However, the respondent said that it appeared pertinent that she had previously found the appellant's use of the Act to be an abuse of process.
66. The respondent stated that she agreed with Mr Rafferty that the making of seven applications for review of decisions by the same body was not, on the face of it, necessarily excessive. She continued:
'The plaintiff has a pattern of continual application to the Courts which has served to prolong his proceedings. Counsel for UCD has indicated that her clients are very concerned about the repeated applications to the Court and that these applications are part of tactics to prolong the proceedings which has put UCD to untold cost. This Court is equally concerned that the processes of the Court are being abused and that valuable Court time is being wasted.' Hedigan J. further stated: 'The limited resources of the judicial system should not be squandered on actions of little merit when so many parties are seeking to have real disputes of great import resolved by these courts. Having spent considerable time hearing this matter and reading the pleadings, it seems to me that the dispute between the parties herein does not rise above the level of hurt feelings. Balancing this against the inordinate time the proceedings have taken and the pattern of continuous applications by the plaintiff, it seems to me that there are grounds upon which the court would be justified in making a restraining order.' In his later judgment of 29 January 2013, Hedigan J stated the following: 'The affidavit of Seamus Given for the respondentlappplicant herein is particularly striking. It recounts a sad and sorry tale of interminable, highly complex applications, most of which were found to be groundless. Vast amounts of court time here in Ireland and in Luxembourg have been expended. Immense costs on behalf of the defendants have been incurred. ' 68. Having summarised the nature of the seven requests under consideration, against the background of the "ongoing prolonged litigation", the respondent stated that she found that the purpose of the requests was directed at an objective unrelated to the access process.
Admissibility of the respondent's affidavits 73. The affidavits filed on behalf of the respondent are sworn by Mr Rafferty. In his first affidavit, sworn on the 5th November, 2013, he set out the sequence of seven applications and exhibited the documentation relating thereto. This documentation includes the correspondence between the respondent's office and UCD referred to above. Mr Rafferty confirmed that the respondent had made her decision for the reasons set out in her letter of the 11th September, 2013. 74. On the 11th November, 2013 the appellant filed an affidavit in which he queried the authority of Mr Rafferty to make an affidavit on behalf of the respondent for the purpose of opposing the appeal, in circumstances where the appeal had been lodged at a time when no Information Commissioner was in place and there was thus no person empowered to delegate this function to him. 75. On the 20th November, 2013 Mr Rafferty swore a further affidavit in which he averred that he had been appointed as a senior investigator in the respondent's office in November, 2011. He said that since that date he had been authorised by Ms O'Reilly to swear affidavits on behalf of the Commissioner in relation to appeals to the High Court brought pursuant to s.42 of the Act. However, he said that in the light of the concerns raised by the appellant, he had instructed the legal representatives of the respondent to seek an adjournment of the proceedings pending the appointment of Mr Tyndall by the President. The appellant responded that Mr Rafferty was giving illegal instructions to the solicitors and that he had committed perjury in averring that he was authorised to make the affidavits. 76. Mr Tyndall was duly appointed by the President on the 2nd December, 2013. According to Mr Rafferty, he then read and approved the contents of an affidavit sworn by Mr Rafferty on the 18th December, which set out a comprehensive account of the matter from the point of view of the respondent. 77. In my view there is no substance to the appellant's argument on this point. It is not the law that the staff of public service bodies or agencies necessarily lose the legal right to continue to do their jobs and to make the decisions that they were previously authorised to make every time there is an interregnum in the position of head of such agency. Such a rule would, inter alia, mean that any such body would present an open goal for litigants during such periods. Jurisdictional issue - whether an appeal lies against the decision of the respondent 79. Section 42(1) of the Act provides as follows:
81. Secondly, the respondent relies upon the decision of Birmingham J. in Nowak v Data Protection Commissioner [2012] IEHC 449. In that case, the respondent had determined that the appellant's complaint was frivolous and vexatious and had therefore declined to investigate it. The Circuit Court had held that there was no right of appeal against such a decision under the Data Protection Acts, 1988 and 2003. The primary issue before the High Court was whether or not this was a correct finding. 82. The relevant statutory regime provides, under section 10(1)(a) of the Data Protection Act, 1988, as amended, that the Data Protection Commissioner may investigate, or cause to be investigated, a complaint made to him or her. Pursuant to s.10(1)(b), where a complaint is made,
(i) investigate the complaint or cause it to be investigated, unless he is of opinion that it is frivolous or vexatious ... "
85. The respondent in the instant case also submits that, in cases of this nature, judicial review would be a more appropriate procedure than a statutory appeal because the leave of the Court would have to be obtained. Judicial review is also more suited to complaints about procedural fairness than an appeal that is limited to a point of law. It is argued that this must be what the Oireachtas intended. 86. The appellant submits that the provisions under consideration by this court are materially different to those of the Data Protection Acts. In particular, he says that the Data Protection Commissioner makes a determination as to whether or not a complaint is frivolous or vexatious before deciding whether or not to embark upon an investigation, whereas the Information Commissioner is empowered to discontinue a review on this basis. To "discontinue" presupposes that there is a review in being. 87. The appellant relies upon the decision of Murphy J. in Killilea v Information Commissioner [2003] 2 IR 402 in support of this interpretation. In that case, the respondent had discontinued a review, pursuant to s.34(9)(a)(ii). The decision was, therefore, on the basis that the application did not relate to a decision specified in the Act as being within the jurisdiction of the Commissioner. At the hearing of the appeal, the respondent submitted that the right of appeal under s.42 did not encompass a right to appeal against a decision to discontinue a review. This, it was argued, was the exercise of a statutorily conferred discretionary power and as such challengeable only by way of judicial review. However, having set out this argument (at p.423 of the judgment), Murphy J. went on to state that
Decision on jurisdictional issue 91. Under s.34(2), an application is made to the Commissioner for a review of the relevant decision. 92. When an application is received, the Information Commissioner is not constrained to make a decision as to whether the matter raised by an applicant is frivolous or vexatious at the commencement of the process but can, it seems, do so at any stage. 93. The Commissioner may invite the parties to make submissions in relation to a "proposed" review. 94. Pursuant to s.34(9)(a), if he or she "is or becomes of the opinion" (emphasis added) that the application for a review, or the application to which the review relates, is frivolous or vexatious, he or she may then refuse to grant the application under subs.(2) -that is, an application for a review - or may discontinue a review. There are therefore two possible scenarios here. The Commissioner can decide, whether before or after receipt of submissions as to a "proposed review", not to embark upon a review or may, having embarked upon it, decide to discontinue it for the reason stated. I agree with the appellant that one can only "discontinue" a process if it is in being, but that is not the end of the matter. 95. "Following the review" the Commissioner may decide to affirm, vary or annul (and, in the latter case, effectively re-decide) the decision in question - s.34(2)(b). This, in my view, has to mean "following the completion of a full process of review". It would not, I believe, be open to the Commissioner to make any of these decisions on the basis of a partly completed process. 96. The appellate jurisdiction of the High Court (for the purposes of this case) is limited to a point of law arising from "the decision of the Commissioner following a review"- s.42(1). It seems to me that the use of the phrase "following a review" in this subsection must be given the same meaning as in s.34(2)(b), and that it therefore must be taken as meaning a substantive decision on the merits of the matter after completion of the full process of review. The statutory appeal process is intended therefore to relate to points of law arising from such substantive decisions and not to a decision made by the Commissioner as to whether to carry out a review, or to discontinue one that has commenced. Complaints as to these latter decisions, as with any other aspect of the process adopted by the Commissioner, are more properly addressed by judicial review. 97. I am conscious of the fact that this analysis may not fully accord with that of Murphy J. in Killilea. However, it is clear from that judgment that this issue was not fully pressed or argued. 98. It follows that I am of the view that the Court has no jurisdiction to entertain this appeal. However, in case I am wrong on this, and having regard to a potential argument that the legal definition of "frivolous and vexatious" is itself a point of law, it seems to me to be appropriate (following the example of Birmingham J. in Nowak) to express a view on this and the other aspects of the case giving rise to points of legal interpretation as opposed to legality of procedures. I make this distinction because it does not seem to me to be appropriate to give an advisory opinion on matters that are clearly reserved to the judicial review process. The test for determining whether an application is "frivolous or vexatious" 100. In this case, I consider that the respondent did not err either in her assessment of the legal test to be applied or in its application to the facts. In the first instance, she was entitled to take into account the context in which the applications were made - the long-running and unsuccessful pursuit of the appellant's grievances dating from 2002. She then set out, carefully and with specificity, why she had come to the conclusion that the appellant was using the FOI process to further prosecute his grievances and that this constituted an abuse of the FOI process. 101. Looking at the actual applications made by the appellant, it is in my view manifest that none of them were properly the subject of FOI requests. The first of the seven is, despite a slight alteration, clearly an effort to get information which the court process (including that of the Court of Justice) had already determined he was not entitled to. 102. The remainder of the requests relate to the conduct of litigation. 103. If a litigant has a legitimate grievance arising from the manner in which court papers are served, the proper method of dealing with it is, in the first instance, by raising it with the court having seisin of the proceedings. The appellant made no such complaint but rather, made a request under the Act for information as to how the papers were served. 104. There is no entitlement, under the Act or otherwise, to compel a litigant to explain to an opposing party why a particular attitude is being adopted - this is a matter protected by privilege and by the court process. The Act is not intended as a means by which the administration of justice can be interfered with - see the judgment of O'Neill J. in E.H. v Information Commissioner [2001] 2 IR 463 and of this court in K v Information Commissioner [2013] IEHC 373. 105. Section 18 of the Act has no application to a decision by a public body to enforce, or not to enforce, an order for costs against an individual, where that individual is not part of a class of persons in a similar situation. 106. In these circumstances I am satisfied that the respondent's interpretation of the statutory terms and her application of them were within her statutory powers and entirely justifiable. 107. Finally, in relation to the order made by Herbert J. in 2008, I do not see that this court has any power under the Act to direct any person or body to publish any particular material on its website. This being a statutory appeal under the Act, I must refuse this relief. |