Request for records relating to an employee with RTE - whether requests are frivolous or vexatious - section 10(1)(e) - whether motive of requester is relevant in considering whether a request is frivolous or vexatious - section 8(4)

Case Summary

Facts

Mr X is a cousin of Mr A, an employee with RTÉ. Mr X claimed there was a dispute between his family and Mr A's family over the will of a relative, now deceased. Mr X made a number of requests under the FOI Act and complaints to RTÉ regarding Mr A and the competition from which he was appointed to RTÉ. Mr X claimed that Mr A's work with RTÉ has resulted in embarrassment and pain for Mr X and his family. RTÉ refused seven of Mr X's requests on the ground that the requests were 'frivolous or vexatious'.

Decision

The Commissioner decided that RTÉ was justified in refusing to grant the seven requests which were the subject of this particular review on the ground that they were frivolous or vexatious.

In his decision the Commissioner commented that in order to justify a request as 'frivolous or vexatious', a public body must establish a 'pattern of conduct' which amounts to an 'abuse of process' or 'abuse of the right of access'. The Commissioner quoted from a reported decision of the Ontario Information and Privacy Commissioner which stated that in order for a 'pattern of conduct' to be established there must be "recurring incidents of related or similar requests on the part of the requester". The time over which the behaviour is committed is also relevant.

In deciding whether a 'pattern of conduct' amounted to an 'abuse of the right of access' the Commissioner found that the following criteria were relevant :

• The actual number of requests made.
• The nature and scope of the requests.
• The purpose of the requests.
• The sequencing of the requests.
• The intent of the requester.

In his review Commissioner summarised Mr X's dealings with RTÉ and his Office. Mr X had made a total of 51 applications for review to the Commissioner's Office, the highest number received from any individual. In addition Mr X accounted for 20% of all requests received by RTÉ during a 13 month period, with almost all of the requests relating to Mr A or Mr A's position with RTÉ. Mr X had appealed 17 of RTÉ's decision to the Office of the Information Commissioner in a year when a total of 20 of RTÉ's decisions had been appealed. Of this 17, 16 related to Mr A or his position with RTÉ. However that fact that Mr X had made a large number of requests was not of itself sufficient to refuse the requests as 'frivolous or vexatious'.

In this review the Commissioner considered it more appropriate to consider whether this 'pattern of conduct' amounted to an 'abuse of the right of access' as opposed to an 'abuse of process'. The Commissioner considered each of Mr X's requests to RTÉ and RTÉ's responses in detail. The Commissioner considered that the requests were all connected and were concerned with seeking information about Mr A and not RTÉ. The Commissioner was also concerned that the result of these requests, taken together with previous requests to RTÉ, would be the construction of a profile of Mr A insofar as his employment with RTÉ is concerned. While it could be argued that some of the information sought by Mr X was not the personal information of Mr A as defined in the FOI Act, the Commissioner was conscious that the cumulative effect of the granting of the requests would reach the stage where an invasion of privacy could be occasioned to Mr A. Taking all this into consideration the Commissioner concluded that RTÉ was justified in its decision to refuse to grant the requests.

In conducting his review the Commissioner was also satisfied that the recent amendment to section 8(4) of the FOI Act allowed for the motive of the requester to be taken into account when considering if a request is 'frivolous or vexatious'. In order to provide guidance to public bodies the Commissioner reiterated that :

• Any decision to find that a request is 'frivolous or vexatious' should not be taken lightly.
• Each case must be judged on its own merits having regard to the criteria set out by the Commissioner.
• The rights provided by the FOI Act must not be abused by public bodies or members of the public.
• The fact that a particular individual had a made a 'frivolous or vexatious' request in the past is not an indication that other requests from that individual are also 'frivolous or vexatious'.

Date of Decision: 14.05.2003

Our Reference: 020375, 020376, 020647, 020648, 020649, 020651, 020652

14.05.2003

Mr X

Dear Mr X

I refer to your applications under the Freedom of Information Act, 1997 for review of a number of decisions of RTÉ to refuse access to certain records relating to Mr A and/or the position he holds with RTÉ.

Background

I have now completed my review which addresses RTÉ's decisions in relation to the seven requests listed in the attached appendix. I have carried out my review in accordance with the provisions of the Freedom of Information Acts 1997 and 2003. Accordingly, all references in this letter to particular sections of the FOI Act, except where otherwise stated, refer to the 1997 FOI Act as amended.

In accordance with the provisions of the FOI Act you were given an opportunity to make a submission on these reviews. In response you provided a submission dated 2 August 2002, which related to review number 020375. I note that Mr Nutley set out his preliminary view in relation to RTÉ's decisions on these seven reviews in his letter to you of 24 March 2003 and gave you an opportunity to respond to his initial view that RTÉ's decisions were justified. You replied to this preliminary view in a further submission received on 14 April 2003 and in a subsequent submission dated 15 April 2003.

In carrying out my review I have given careful consideration to the comments in your submissions together with the comments in your letters of appeal to this Office and in your requests to RTÉ. I have also taken account of a number of submissions received from RTÉ and your dealings with this Office, RTÉ and other public bodies in the context of the FOI Act.

Scope of Review

This review is concerned solely with the question of whether RTÉ's decisions to refuse to grant your seven requests listed in the attached appendix is justified. This review will not address RTÉ's decision in relation to your request for all records "...concerning the correspondence I have had with RTÉ over a number of years", (review reference number 020650) or the four applications for review of RTÉ's decisions received in my Office in April 2003.

Findings

Given the importance of my findings I believe it is worth repeating some of the points made in Mr Nutley's letter to you of 24 March 2003.

I believe it would also be useful to recall the background to your requests to RTÉ. In a number of letters to this Office you have provided details of a dispute between your family and a relative of Mr A, an employee with RTÉ, concerning the will of a person who died in or around 1980. Following a number of complaints concerning Mr A which you made to the Broadcasting Complaints Commission, you made a number of requests under the FOI Act to RTÉ. In your requests you claim that during the course of his employment with RTÉ, Mr A was involved in [ certain day-to-day work with RTE]. You claim that as a result both you and your family have suffered pain, hurt and embarrassment. You also claim that [an] RTE report which concerned the conviction of an individual who, you claim, is related to Mr A, has also caused you embarrassment and pain because, as you see it, you are being linked to this convicted individual. While you have stated in your submissions that you have reported incidents of intimidation to the Garda Síochána, you have not explained how these reports have resulted in such intimidation or embarrassment to you or your family.

Following these reports you made further complaints to RTÉ and a series of requests under the FOI Act for access to records held by RTÉ relating to Mr A and/or the position held by him in RTÉ. You subsequently appealed a number of RTÉ's decisions on these requests to this Office.

I believe it would also be relevant to recall some of your dealings with my Office. As of 20 May 2003, you have made a total of 51 applications for review to my Office, which is the highest number of applications received by my Office from any individual. While there are no specific figures available, I estimate that the average number of applications made to my Office by any individual is between one and two applications. You say that the vast majority of your applications are connected to the disputed will. Your applications have involved 14 different public bodies including the Department of the Taoiseach, Department of Agriculture and Food, the Department of Enterprise, Trade and Employment, the Department of Education and Science, the Southern Health Board and now RTÉ. I note that, to date, I have affirmed the decision of the public body in 23 of the 26 reviews which have been concluded by way of a binding decision.

I also note that your application for review in case 98074 was discontinued on the basis that your application to this Office was frivolous or vexatious. In case 99483 and 99137 your applications were refused in part on the ground that your application related to a review already with this Office.

RTÉ refused to grant the seven requests which are the subject of this review under sections 10(1)(a) and 10(1)(e) of the FOI Act.

Section 10(1)(e)

Section 10(1)(e) of the FOI Act provides that a request may be refused if -

" the request is, in the opinion of the head, frivolous or vexatious, ..."

In considering my decision I have also taken into account section 8(4) of the FOI Act as amended which states that, subject to the provisions of the FOI Act, in deciding whether to grant or refuse to grant a request, a head shall disregard :

"(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,".

In my previous decision 99151 - Mr ABW and the Department of Enterprise, Trade and Employment I offered some comments on the interpretation of section 10(1)(e) of the FOI Act. In that decision I considered the use of the phrase 'frivolous or vexatious' in its legal sense:

"The OED defines the words, ['frivolous or vexatious'] in their legal sense, as "Frivolous: (in relation to a pleading) manifestly insufficient or futile; Vexatious: (in relation to legal actions) instituted without sufficient grounds for the purpose of causing trouble or annoyance to the defendant".

I then considered the use of the phrase in the context of proceedings before a Court or tribunal. I considered the words of Costello, J (as he then was) in the case of D.K. v A.K. [1993] I.L.R.M., 710 which referred to a frivolous or vexatious action as one which was an "abuse of the court's process". I also referred to a decision of the Canadian Federal Court in Larden v R and others (1998) which also referred to the expression frivolous and vexatious as including proceedings which are an abuse of process. I went on to say :

"...it seems to me that the concept of abuse of process which the phrase 'frivolous and vexatious' also covers provides an indication of the meaning to be given to the phrase 'frivolous or vexatious' in section 10(1)(e).

I am fortified in my view that the provisions of section 10(1)(e) are aimed at abuses of the processes set out in the Act by the approach taken in this matter in Ontario, Canada. The Ontario Municipal Freedom of Information and Protection of Privacy Act (R.S.O. 1990, Chap.M.56) is similar to the Irish FOI Act.... A regulation made under the Act and known as Regulation 823 provides guidance as to how to determine whether or not a request is frivolous or vexatious.

The Regulation provides that a head shall conclude that a request for a record is frivolous or vexatious if :

" (a) the head is of the opinion on reasonable grounds that the request is part of a pattern of conduct that amounts to an abuse of the right of access or that would interfere with the operations of the institution; or

(b) the head is of the opinion on reasonable grounds that the request is made in bad faith or for a purpose other than to obtain access."

There is a close similarity between the provisions of the Ontario Municipal Act and the Irish Act. It seems to me that the guidance given in the regulation is useful in interpreting section 10(1)(e), given the almost identical statutory context. It would not be appropriate to adopt fully the Ontario definition because, for one thing, it overlaps with section 10(1)(c) which permits refusal on the grounds that the work involved in granting the request would cause a substantial and unreasonable interference with or disruption of the other work of the public body. However, in my view the concepts of abuse of the right of access and the making of requests in bad faith are of assistance in determining how the provisions of sections 10(1)(e) should be applied.

A number of the reported decisions of the Ontario Information and Privacy Commissioner relate to claims that requests were frivolous or vexatious. Those decisions put some flesh on the bare bones of the provisions of the regulations and, in particular, elucidate on what is meant by a "pattern of conduct", when such a pattern amounts to an "abuse of the right of access" and when such a request is made "in bad faith". The seminal decision, to which many of the reported decisions refer, is that signed by Assistant Commissioner Mitchinson and known as Order M-850, Appeal M-9600149, Town of Midland.

The first point to note is that the Assistant Commissioner was at pains to point out that the discretionary power to refuse a request for access on the grounds of frivolousness or vexatiousness (and thus to affect seriously the ability of a requester to obtain information under the Act) should not be exercised lightly. The oft-quoted guidance given by the Assistant Commissioner in the Town of Midland decision on the matters mentioned above may be summarised as follows:

• A "pattern of conduct" requires recurring incidents of related or similar requests on the part of the requester (or with which the requester is connected in some material way). The time over which the behaviour is committed is also a relevant factor.
• An "abuse of the right of access" may exist where, in addition to an excessive volume of requests and appeals, the following factors are present:

(i) the requests are varied in nature and broad in scope; (ii) there is the appearance that they were submitted for their nuisance value; (iii) there may be increased requests and appeals following the initiation of court proceedings by the institution; (iv) the requester may be working in concert with another requester whose publicly stated aim was to harass government and to break or burden the system.

• An "abuse of the right of access" can also include situations where the process is used more than once, for the purpose of revisiting an issue which has been previously addressed.
• A request is made in "bad faith" where it is not simply made as a result of bad judgement or negligence, but rather as a result of the conscious doing of a wrong flowing from a dishonest purpose or moral obliquity. It is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will. No pattern of conduct is required here.
• A request is made "for a purpose other than to obtain access" when the requester is motivated not by a desire to obtain access pursuant to a request but, by some other objective. Again no "pattern of conduct" is required.

It seems to me that in considering whether a particular request is frivolous or vexatious it is better, in the context of the Irish FOI Act, to concentrate on the concept of abuse of process or evidence of bad faith and to look at the purpose of the Act, as disclosed by its long title and specific provisions and at the nature of the process.

...

In short, the Act demands that public bodies meet very high standards in dealing with requests. This is as it should be; but the corollary is that the legislation assumes reasonable behaviour on the part of requesters. It could hardly have been the intention of the Act that a public body be required to go through the rigorous processing requirements of the Act in cases where the requester makes no effort to co-operate with the reasonable requirements of the public body. More particularly, it seems to me that certain patterns of conduct by requesters and attempts by requesters to circumvent the provisions of the Act can constitute an abuse of the process of making an FOI request and that such requests may be refused on the grounds that they are frivolous or vexatious."

In the same decision I went on to identify certain patterns of conduct which can amount to an "abuse of process":

"Submission of a series of requests on the same topic

Requests made by the same person in or around the same time as part of a series of requests dealing with the same topic may sometimes (but not always) be treated as frivolous or vexatious. In such cases, it may clearly be inefficient from an administrative point of view and of no benefit to the requester to deal with the requests singly...

...

Where the number of requests submitted by the requester is very large

Of itself, the fact that a requester has submitted a 'large' number of requests does not indicate that any of these requests is frivolous or vexatious. Apart from any other consideration the question of what constitutes a 'large' number of requests is so subjective as to be of little value, in practice, in determining whether section 10(1)(e) might apply. Also, the number of requests received by a public body, both generally and from any one requester, must depend in part on its attitude to the release of information. For example, if a public body routinely resists requests for information which, perhaps, other public bodies would release administratively then it may end up receiving a large number of FOI requests. It could hardly be correct that its subsequent difficulties in processing these requests should be laid at the door of requesters who are merely seeking to exercise their statutory rights. In saying this I am not suggesting that the difficulties which the Department has experienced with Mr ABW in the instant case are of its own making. I merely make the point to show the difficulties in refusing requests solely because the requester has made a large number of requests. The Act does recognise that dealing with certain requests could cause a substantial and unreasonable interference with or disruption of the other work of a public body and it allows such requests to be refused under section 10(1)(c). The section refers to 'request' (singular) but it seems to me that, in the light of section 11 of the Interpretation Act 1937 (which provides that every word importing the singular shall, unless the contrary intention appears, be construed as if it also imported the plural), the section is apt to cover a situation in which one requester makes a large number of requests over a short period of time, the processing of which would cause substantial and unreasonable interference with or disruption of the other work of a public body.

Both section 10(1)(c) and section 9, which provides for deferral of access in certain cases, are a clear recognition that public bodies should not be called upon to shoulder unreasonable administrative burdens. The fact that the Act does not identify in exhaustive detail the circumstances in which such unreasonable burdens might arise does not mean that public bodies are in an administrative straitjacket, forced to process requests regardless of whether it is reasonable to do so or not. A request or requests for an unreasonably large number of records which is made in abuse of the process of the Act may take a request out of the realms of section 10(1)(c) and into those of section 10(1)(e).

...

In making these comments, and my earlier comments on series of requests, I do not wish to suggest that public bodies can be exonerated from duties which are clearly imposed on them by statute. They should not be taken as an encouragement to public bodies to ignore the rights of requesters. I make them because it seems to me that a public body is entitled to take account of what is reasonable when faced with a large number of requests, at or about the same time, from the one requester.

...

Cases of bad faith aside, whether a request is frivolous or vexatious should be judged by reference to the pattern of behaviour of the requester in relation to the FOI request or requests under consideration."

I concluded my comments by saying that the refusal of requests on the grounds that they are frivolous or vexatious is not something that should be undertaken lightly by public bodies. In my view, section 10(1)(e) of the FOI Act is restrictive in scope, given the terms of the Act generally. Regard must also be had to the provisions of section 8(4) which was amended by the FOI Amendment Act 2003 and require that, subject to the provisions of the FOI Act, any reasons behind a request, whether given by the requester or perceived by the public body, shall be disregarded in deciding to grant or refuse to grant a request. Public bodies should avoid imputing motives to requesters on the basis of which requests are then refused under section 10(1)(e). They should not assume that the fact that requests cause them administrative inconvenience is good enough cause to refuse requests on these grounds. The receipt of frivolous or vexatious requests from a particular individual in the past is not in itself sufficient to conclude that a new request is automatically frivolous or vexatious. Each request must be considered on its own merits as measured against the relevant criteria.

I note that the Order I referred to in the decision of Mr ABW and the Department of Enterprise Trade and Employment, Order M-850 and the language of section 5.1(a) of the Ontario Regulations was reviewed by former Ontario Assistant Commissioner Irwin Glasberg. In Order M-864 former Assistant Commissioner Glasberg formulated a list of factors that he believed to be relevant in deciding whether a pattern of conduct amounts to what he described as "an abuse of the right of access". These factors elaborate on what I accepted in the case 99151 - Mr ABW and the Department of Enterprise Trade and Employment :

" (1) The actual number of requests filed: are they considered excessive by reasonable standards?

(2) The nature and scope of the requests: for example, are they excessively broad and varied in scope or unusually detailed? Alternatively, are the requests repetitive in character or are they used to revisit an issue which has previously been addressed?

(3) The purpose of the requests: for example (a) have they been submitted for their "nuisance" value, (b) are they made without reasonable or legitimate grounds, and/or (c) are they intended to accomplish some objective unrelated to the access process?

(4) The sequencing of the requests: do the volume of requests or appeals increase following the initiation of court proceedings or by the institution or the occurrence of some other related event?

(5) The intent of the requester: is the requester's aim to harass government or to break or burden the system? "

The former Assistant Commissioner commented that the list was not intended to be exhaustive and also reiterated the view expressed by Commissioner Wright in Order M-618, that a high volume of requests alone would not necessarily amount to an abuse of process. It seems to me that these criteria are relevant in considering whether RTÉ's decisions to refuse to grant the seven requests which are the subject of this review is justified.

In considering whether the exemption under section 10(1)(e) applies in this review I have examined a number of these criteria.

Pattern of Conduct

One of the criteria to be taken on board when considering abuse of process is the pattern of conduct of the requester.

As explained earlier a pattern of conduct requires recurring incidents of related or similar requests on the part of the requester. The time over which the behaviour is committed is also a relevant factor. I have carefully examined these seven requests in the context of your other requests to RTÉ. Five of the seven requests in question here were made in August 2002. You made a total of 31 requests under the FOI Act to RTÉ in the period 1 December 2001 to 31 December 2002. Of those 31 requests 28 relate to Mr A and/or the position held by Mr A in RTÉ. A number of these requests consist of a series of requests or questions so it could be argued that the number of requests relating to Mr A is actually higher. I note that RTÉ received a total of 154 FOI requests during this period. In other words 20% of all requests received by RTÉ during this 13 month period were made by you of which almost all relate to Mr A and/or the position held by him in RTÉ. I note that you appealed 17 of RTÉ's decisions to this Office in 2002. To put this into context only 20 of RTÉ's decisions have been appealed to this Office in the same year. Of this 17, 16 of your appeals relate to Mr A and/or Mr A's position in RTÉ.

Finally I note that as of 20 May 2003 you have appealed a further 4 of RTÉ's decisions to this Office, three of which relate to Mr A.

I acknowledge that the Act places no limits on the number of appeals that any individual may make. I have already stated that, of itself, the fact that a requester has submitted a 'large' number of requests does not indicate that any of these requests is frivolous or vexatious. The seven requests here all relate to Mr A or the competition from which he was appointed. The vast majority of your other requests to RTÉ relate to Mr A or his position in RTÉ. The topic of the requests is similar in nature and your requests are not discrete or separate requests. I also acknowledge that, standing alone, these seven requests do not constitute "recurring incidents of related or similar requests" and hence a pattern of conduct. However having considered the relationship between these requests and your other requests to RTÉ together with the nature, frequency and time within which these seven requests were made to RTÉ I have concluded that a pattern of conduct does exist.

Abuse of Process

However the fact that a pattern of conduct exists does not end the matter. In my previous decision I stated that the pattern of conduct must amount to an abuse of process for a refusal under section 10(1)(e) to be justified. However in the present case I believe it is more relevant to consider whether an abuse of the right of access exists. The reason I do so is that I do not believe that you have proved unco-operative in relation to the processing of your requests with RTÉ nor with your application for review to my Office. Likewise from my examination of the records involved in your appeals and the outcome of my reviews involving RTÉ to date, it is clear to me that, in the main, RTÉ has responded to your requests under the Act in good faith. There are also examples of RTÉ providing information outside the FOI Act which, strictly speaking, was not specifically sought by you but, it appears, was provided in an effort to be as helpful as possible in replying to your requests. While public bodies must always comply with the provisions of the FOI Acts, this provision of information by public bodies outside of the FOI Act is to be encouraged. While the Act places certain requirements on public bodies I have also previously stated that, "Requesters who are heavy users of the Act, and incidentally who may benefit considerably from the rights conferred by it, have a corresponding responsibility to act reasonably in relation to the processing of their requests by public bodies. Unreasonable or uncooperative behaviour by a requester in relation to the processing of a large number of requests made by him or her may justifiably lead to the conclusion that certain (if not all) of the requests on hand from that requester are frivolous or vexatious."

Abuse of the Right of Access

I am satisfied that it is just as relevant to concentrate on a pattern of conduct that amounts to an abuse of the right of access when considering if a request is frivolous or vexatious.

It is clear from my comments in relation to 'pattern of conduct' and my description of your dealings with RTÉ that I believe that you have made an excessive number of requests having regard to the time within which you have made the requests and the number of requests received by RTÉ generally. However, as I have already mentioned, this factor alone is not sufficient for me to find that your requests are frivolous or vexatious.

I have examined in detail the requests you made to RTÉ which have been appealed to this Office. Your initial requests to RTÉ in December 2001 and January 2002 were concerned with the competition and advertisement for positions with RTÉ from which Mr A was recruited. In your requests you sought access to [detials of requests] and records relating to disciplinary action against Mr A. RTÉ denies that any disciplinary action has been taken against Mr A and has described him as an exemplary employee. In response to those requests RTÉ supplied you with details of the competition. It also explained that staff were not required to sign any declarations of the type referred to in your request but provided you with extracts from its staff manual and its guidelines for programme makers. In a further request in January you sought access to internal correspondence between various RTÉ officials and the then Minister for Arts Heritage, Gaeltacht and the Islands. I upheld RTÉ's decisions in three of the four appeals from this period while you agreed to withdraw your appeal in relation to the remaining request.

In March 2002 you sought access to internal correspondence between RTÉ staff concerning your complaint against Mr A, a copy of Mr A's employment contract, further details on the outcome of the competition [ ] with RTÉ and further information on declarations that RTÉ staff must comply with. I upheld RTÉ's decision in two of these reviews while I decided to grant access to that part of Mr A's contract which was already in the public domain. The remaining decision (our reference 020376) is included in this particular review.

In April 2002 you sought access to records relating to: the three 'referees' supplied by Mr A to RTÉ in the context of his application for employment with RTÉ; details in relation to [details of request] and Mr A's [details of request]. I affirmed RTÉ's decision in relation to the first two requests while the third (reference 020375) is included in this review.

On the 1 August 2002 you made a further five requests for access to records relating to :

[details of request]

These five requests are also included in this review. A sixth request made on 1 August 2002 for copies of all correspondence between you and RTÉ is being dealt with in a separate review (our reference 020650).

I have examined the requests which are the subject of this review in the context of your total requests to RTÉ and your dealings with this Office. It is clear that there is an excessive amount of requests being made by you concerning Mr A and/or his position with RTÉ. I am satisfied that your requests are similar in nature and in many cases overlap.

I have also considered the outcome of your requests about Mr A. Given your frequent use of the FOI Act you will inevitably have a greater knowledge and appreciation of the provisions of the Act than most members of the public. You will also have a greater understanding of the effect that your requests will have on the public body concerned and Mr A. While you may describe your requests as being concerned with how RTÉ recruits its staff, I am satisfied that all of your requests which are the subject of this review are concerned with either Mr A or how he was appointed. They are not primarily concerned with the actions of a public body but rather with seeking information on Mr A. By your own admission you are involved in a dispute with Mr A's family and have sought access to records concerning Mr A.

I believe that your requests in relation to Mr A and the long standing dispute are connected and the stage is now being reached where it may be claimed that you are abusing your right of access. I also have some concerns that the result of these requests, taken together with previous requests to RTÉ, is that you will have constructed a profile of Mr A insofar as his employment in RTÉ was concerned. I am satisfied that requests made in the circumstances in this case, the outcome of which delivers a detailed individual employment profile of Mr A are not made on reasonable grounds. In saying this I am mindful of the Long Title of the Act which articulates the purpose of the Act as being to enable members of the public to obtain access to information consistent with the public interest and the right to privacy. It may be the case that some of the information you seek is not personal information by virtue of subsection (I) of section 2 of the FOI Act, which excludes from the definition of personal information certain limited information relating to the staff of a public body. However I am conscious of the cumulative effect that would arise from the release of information in response to your requests. The cumulative effect of your requests is reaching the stage where an invasion of privacy could be occasioned to Mr A by the granting of these requests.

Taking all these considerations into account I conclude that the seven requests, viewed in the context of your total requests to RTÉ, amount to an abuse of the right of access and that RTÉ is justified in refusing to grant your requests under section 10(1)(e).

In conducting this review I have been mindful of section 8(4) of the Act, as amended, which in my view, allows a head of a public body to take into account the motive of a requester when considering if a request is vexatious. In this case, I do not believe that you are acting in bad faith or are attempting to disrupt the process by non co-operation or bad behaviour.

I note that in your submissions you contend that certain records exist in relation to your request for records of "documents exchanged between RTÉ and the Rights Commissioner, the decision ... given to RTÉ by the Rights Commissioner on foot of my complaint to RTÉ". RTÉ refused to grant this request under both section 10(1)(e) and section 10(1)(a) of the FOI Act (i.e. on the ground that the records do not exist). RTÉ has stated that no Rights Commissioner was appointed following your complaints and that therefore no records could exist. As I have found that section 10(1)(e) applies it is not necessary for me to consider the application of section 10(1)(a) to this particular request or to the remaining six requests which are the subject of this review which were also refused by RTÉ under both sections of the FOI Act.

Conclusion

In order to provide guidance to public bodies I wish to reiterate that any decision to find that a request is frivolous or vexatious is not something that public bodies should take lightly. It is important to stress that each case must be judged on its own merits having regard to the criteria I have set out. The FOI Act provides a very important right for all members of the public to access records held by public bodies. It is a right that must not be abused by either public bodies or members of the public. In order for a public body to consider that a request is frivolous or vexatious a public body must establish that there is a pattern of conduct which amounts to an abuse of process or abuse of the right of access. A public body should also remember that the fact that a particular individual has made a request, or a number of requests, which are frivolous or vexatious is not an indication that other requests from that individual are frivolous or vexatious. In this particular review I have found that RTÉ was justified in refusing to grant these particular requests on the ground that they are frivolous or vexatious.

Decision

Having carried out a review under section 34 (2) of the FOI Act I hereby affirm the decisions of RTÉ in relation to the seven requests in the attached appendix.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.

Yours sincerely

Information Commissioner