Requests relating to grievances against the Institute - whether the applications for review or the applications to which the reviews relate are frivolous or vexatious - section 34(9)(a)(i)

Case Summary

Facts

Mr. X is a graduate student involved in numerous disputes with the Institute. At issue in this case were 12 applications for review that covered at least 77 separate requests under the FOI Act relating to Mr. X's grievances against the Institute.

Decision

The Commissioner decided, in the exercise of her discretion, to discontinue the reviews in accordance with the provisions of section 34(9)(a)(i) of the FOI Act on the basis that the applications or the applications to which the reviews relate were frivolous or vexatious. In reaching this decision, she adopted the former Commissioner's approach to interpreting the term "frivolous or vexatious". Accordingly, she considered that a request or an application is "frivolous or vexatious" within the meaning of the FOI Act where it either is made in bad faith or forms part of a pattern of conduct that amounts to an abuse of process or an abuse of the right of access. She emphasised that section 8(4) of the FOI Act, as amended, allows a public body to take into account the motive of a requester when considering if a request is "frivolous or vexatious". She noted, in any event, that section 8(4), by its very terms, only applies to a decision as to whether to grant or refuse to grant a request under section 7 and is therefore not applicable, and in no way limits, the exercise of her discretion under section 34(9) of the FOI Act.

The Commissioner considered the applications for review in the context of the other requests made to the Institute and Mr. X's dealings with her Office. She noted the large number of applications for review filed by Mr. X and the disproportionate amount of requests he had made to the Institute in a seven month period. She also noted that the Institute's response to Mr. X's earlier FOI requests had led to numerous additional requests and, in particular, that he had systematically made requests under section 18 of the FOI Act for comments or remarks that he had gained access to under FOI that he considered to be objectionable. As Mr. X's grievances against the Institute had multiplied, so too had his FOI requests. The Commissioner was satisfied that a pattern of conduct existed.

The Commissioner found that the pattern of conduct amounted to an abuse of process. She considered that Mr. X had made an unreasonably large number of requests for a seven month period. She also noted that his requests were unusually detailed and were often used to revisit issues. Moreover, it was apparent to the Commissioner that the purpose of Mr. X's requests was often directed at accomplishing some objective unrelated to the access process. Rather, he seemed to be using FOI in a challenging or even at times intimidating manner. A number of requests seemed to have been submitted at least in part for their nuisance value. In addition, the evidence showed that he had knowingly attempted to use FOI in order to circumvent the confidentiality provisions pertaining to investigations by another public body. Lastly, the Commissioner found that Mr. X's conditional offer to withdraw his undecided requests as part of a "comprehensive settlement" proposal in relation to a disciplinary complaint made against him further demonstrated that he was using FOI for improper purposes.

The Commissioner concluded that Mr. X was using FOI tactically in pursuit of his disputes with the Institute. She was therefore satisfied that the reviews formed part of a pattern of conduct that amounted to an abuse of the FOI process.

Date of Decision: 25.11.2003

Our Reference: Case 030406, 030407, 030408, 030409, 030438, 030439, 030440, 030523, 030581, 030582, 030650, 030651

25.11.2003

Mr. X

Dear Mr. X

I refer to your applications, as referenced above, for review of a number of decisions of [name of third-level institute] ("the Institute") in relation to requests you have made under the Freedom of Information Act, 1997 ("the FOI Act"). I have considered your applications in accordance with the provisions of the FOI Act, 1997, as amended by the Freedom of Information (Amendment) Act, 2003. The purpose of this letter is to notify you that I have decided, in the exercise of my discretion, to discontinue these reviews in accordance with the provisions of 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.

Background

In deciding to discontinue these reviews, I have had regard to

• your applications for review,
• the full body of your requests under the FOI Act to the Institute as of 18 July 2003,
• your dealings with this Office in Case Numbers 030159, 030183, 030184, and 030185,
• submissions and supporting documentation received from the Institute, and
• the contents of your reply to the letter issued by Ms. Melanie Campbell, Investigator, on 18 September 2003, advising you of her preliminary view on the matter.

Scope of Review

As set out in Ms. Campbell's letter, the applications for review at issue in this case relate to 12 applications that you have made under the FOI Act in the period of 19 January 2003 to 17 April 2003. The 12 related applications, in turn, cover at least 77 separate requests, most of which are requests for information under section 18 of the FOI Act. In light of the manifest pattern of your requests, the issue which must be decided is whether 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.

Findings

"Frivolous or Vexatious"

Ms. Campbell's letter set out the relevant provisions of the FOI Act and explained the former Commissioner's approach to interpreting of the term "frivolous or vexatious". I adopt the former Commissioner's approach, which, as Ms. Campbell noted, was based on comments relating to the term "frivolous or vexatious" as it appears in the first clause of section 10(1)(e), but is also applicable to section 34(9)(a)(i) of the FOI Act.

Accordingly, I consider that a request or an application is "frivolous or vexatious" within the meaning of the FOI Act where it either is made in bad faith or forms part of a pattern of conduct that amounts to an abuse of process or an abuse of the right of access. The following is a non-exhaustive list of relevant factors to consider in determining whether a pattern of conduct amounts to an abuse of the right of access, as identified in the former Commissioner's decision in Case Number 020375, Mr. X and RTÉ:

" (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: does 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? "

In addition, the outcome or cumulative effect of the requests is a relevant consideration. Moreover, it is appropriate to consider the requests under review in the context of other requests made to the public body and the requester's dealings with this Office.

In light of your reply to Ms. Campbell's letter, I also wish to emphasise that the recent amendment to section 8(4) of the Act added the words "[s]ubject to the provision of this Act". I take this to mean that, where the reasons for the request may be relevant to a particular provision, account can be taken of the reasons. Therefore, like my predecessor, I am of the view that section 8(4) of the FOI Act, as amended, allows a public body to take into account the motive of a requester when considering if a request is "frivolous or vexatious". In any event, however, section 8(4), by its very terms, only applies to a decision as to whether to grant or refuse to grant a request under section 7. It is not applicable, and in no way limits, the exercise of my discretion under section 34(9) of the FOI Act. (See generallyJoseph Killilea and the Information Commissioner (2002 No. 54 MCA), discussing the exercise of discretion under section 34(9)).

Pattern of Conduct

I have examined the factors listed above in the context of this case. It is not disputed that, to date, you have filed a total of 16 applications for review with this Office since March of this year. From 17 December 2002 to 18 July 2003, you made at least 74 requests under the FOI Act to the Institute. During this period, the Institute received a total of 110 requests, which means that you accounted for over 65% of all requests received by the Institute in this seven month period. Eight separate requests were received from you on one day.

Like Mr. X in the RTÉ case, a number of your requests actually consist of a series of requests or questions. According to the Institute's submission, which is supported by documentary evidence, the total number of different pieces of information or amendments to personal information requested exceeds 220. Moreover, while you generally challenge Ms. Campbell's view of the reasons for the requests, you do not deny that most, if not all, of the requests relate to your grievances against the Institute, stemming initially from questions raised by Dr. A, Course Director, over your compliance with the admissions requirements of the [name of course] and critical comments made by Dr. A about your behaviour.

You also do not deny that the Institute's response to your earlier FOI requests led to numerous additional requests relating to the requirements of the [name of course], your complaints against Dr. A, and comments made by Dr. A and others that you may view as critical of you. In particular, as noted by Ms. Campbell, you have systematically made section 18 requests for comments or remarks that you have gained access to under FOI that you consider to be objectionable. You take issue with Ms. Campbell's view that such comments or remarks do not qualify as "acts" under any reasonable interpretation of the FOI Act. You state that "[c]omments or remarks, when those comments or remarks are placed on a student file and employed for the purpose of justifying a disciplinary process against the student and other harassment and victimisation of the student, do indeed constitute 'acts' under the Freedom of Information Acts 1997 and 2003."

I agree with my predecessor's view of section 18, as set out in Case Number 99212, Mr. X and the Department of Agriculture, Food and Rural Development:

"[S]ection 18 does not apply to every action of a public body. The Oireachtas could not have intended that public bodies should be required, on demand, to provide a written statement of reasons and findings on any material issues of fact made for the purposes of every single action of the public body and its officials. Taking section 18 as a whole, it seems to me that the word "act" in the section must be interpreted as the exercise (or refusal to exercise) of a power or function which may result in the conferring or withholding of a benefit. In addition, the reasons for the act must have a bearing on the outcome of whether a person receives or does not receive a benefit or suffers a loss or a penalty or other disadvantage. In other words, if the same outcome would result regardless of the reasons for the act in question then section 18 does not apply to that act."

Applying this interpretation, I would accept, for instance, that the formal commencement of disciplinary proceedings against you would amount to an "act" for the purposes of section 18. You, however, have made section 18 requests for matters far short of such an action, including, it seems, the mere recording of any objectionable reference to you. For example, application number 030438 relates to a request, which was made "further to the first wave of records" released to you under FOI, for 14 separate "statement[s] of any findings on any material issues of fact" for comments made by Dr. A about you in her record of [a meeting held with the requester]. This is the same record that you attempted unsuccessfully to have deleted from your student file under section 17 of the FOI Act in Case Number 030183. In addition, I note that, in application number 030581, you seek 16 separate statements under section 18 for "contentions" made in a disciplinary complaint against you to [another member of staff], even though at the time of making your request the complaint had yet to be referred to [the appropriate internal review mechanism], a measure needed for formal disciplinary proceedings to commence. You have also made section 18 requests for a matter as innocuous as the use of the phrase "and so it goes on" in relation to a complaint made by you against Dr. A (XXX/0112/FOI) and references to you in the third person in a record written by Dr. B (XXX/0132/FOI).

As your grievances against the Institute have multiplied, so too have your FOI requests. The pattern of your requests indicates that the FOI process and the right of access are an integral part of your strategy in furthering your disputes. In the circumstances, I am satisfied that a pattern of conduct exists.

Abuse of Process

Moreover, I find that your pattern of conduct amounts to an abuse of process. I consider that you have made an unreasonably large number of requests for a seven month period. From the evidence before me, I am satisfied that the Institute has been co-operative in dealing with your requests, yet this has only resulted in numerous additional requests. By their quantity and nature, your requests have produced an administrative burden that the Institute should not reasonably be expected to bear. You, in turn, have made no effort to reduce this burden, even when asked to do so, apart from suggesting that your requests be answered chronologically and, on 8 March 2003, conditionally offering to withdraw any undecided requests as part of a "comprehensive settlement" proposal in relation to the disciplinary complaint made against you. (I am also aware that [details of the circumstances of the withdrawal of a "request with continual reactivation"]) Your refusal otherwise to withdraw or prioritise your requests is particularly remarkable given that, in some instances (e.g., XXX/0137/FOI), the information apparently was available to you through other means. As the former Commissioner observed in Case Number 99151, Mr. ABW and the Department of Enterprise, Trade and Employment: "[T]he 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."

As Ms. Campbell noted, your requests are also unusually detailed and are often used to revisit issues. I have referred above to one of the many examples cited by Ms. Campbell (application number 030438) and need not repeat the others here.

It is also apparent to me that the purpose of your requests is often directed at accomplishing some objective unrelated to the access process. For instance, I do not accept that the purpose of your 14 requests under section 18 in relation to a record of a meeting held with you, at which you would have had an opportunity to question in person any objectionable comments or remarks, was truly to seek further information about the statements made. Rather, you seem to be using FOI in a challenging or even at times intimidating manner. Other examples here include application number 030407, comprising of a section 17 request for the deletion of remarks made by Dr. B about you, a section 7 request for a list of staff members who are known to have read or been informed of the remarks, a section 18 request in relation to the remarks for which you seek deletion, six questions seeking further information about the remarks under section 7, and a further section 18 request for the reasons for the delay in releasing the record containing the remarks into your possession. These requests were followed by numerous other requests concerning Dr. B, including a request under section 7 for the terms and conditions upon which Dr. B occupies her position at the Institute (XXX/0127/FOI). I also note that the nature of your request in application number 030523, which relates to a "prospective decision" of the [another member of staff] with respect to disciplinary proceedings, demonstrates that you are using FOI in an attempt to prevent the Institute from taking further disciplinary action against you.

Some requests have at least the appearance of being submitted merely for their nuisance value, such as XXX/0112/FOI and XXX/0132/FOI, as described above. For others, such as application number 030581, comprising of 16 requests under section 18 in relation to the disciplinary complaint made against you, and your "request with continual reactivation" (XXX/0106/FOI), it strains credibility to accept that you were not at least motivated in part by the nuisance value of making such requests. In addition, the nature of your request in XXX/0123/FOI shows that, in Case Number 030159, you knowingly attempted to use FOI in order to circumvent the confidentiality provisions pertaining to investigations by [another public body].

Lastly, I find that your "Offer of Comprehensive Settlement" further demonstrates that you are using FOI for improper purposes. Offering to withdraw your undecided requests as part of a quid pro quo in relation to the disciplinary complaint made against you indicates not only an ulterior motive for making the requests but also a recognition of the burden your requests have placed on the Institute.

Decision

I conclude, based on the evidence before me, that you are using FOI tactically in pursuit of your disputes with the Institute. I am therefore satisfied that these reviews form part of a pattern of conduct that amounts to an abuse of the FOI process. Accordingly, in the exercise of my discretion under section 34(9), I discontinue these reviews on the basis that your applications or the applications to which the reviews relate are frivolous or vexatious.

Yours sincerely

Emily O'Reilly
Information Commissioner