Case 050364. Request to Trinity College Dublin - whether frivolous or vexatious - section 10(1)(e) - whether request would have required the examination of such number of records as to cause a substantial and unreasonable interference with the work of the College - section 10(1)(c). 

The decision in this case was subsequently appealed to the High Court by Mr X.  On 16 April 2008, it was agreed between the parties that the decision be remitted to the Office of the Information Commissioner for fresh determination.

Case Summary

Facts

The requester (Mr X) sought access to all College records that 'contain only personal information' relating to him, that had not already been released to him under either the Freedom of Information Acts or the Data Protection Acts. He said that this included records that were previously exempted from release but in relation to which the exemptions relied on might no longer apply.

The College's decision found the request to be so broad and unspecific that it would put an unreasonable burden on the College to respond. It said it was also refusing the request on the grounds that it was vexatious, and that section 10(1)(e) of the FOI Act applied. The College upheld its position following internal review. Mr X's application to this Office said that the request was quite specific and contained sufficient particulars to enable the appropriate records to be located. He also said that his request was not vexatious as it was not made to cause annoyance, but to gain copies of the records concerned for legal and other purposes.

Decision

The Commissioner's authorised official, Mr Garvey, found the request at issue to be excessively broad, and that, although the College had invited Mr X to refine his request, he had not done so. Mr Garvey noted that the Commissioner had, on 17 December 2002, commented on a pattern of conduct that led her to discontinue 12 other separate applications made by Mr X in relation to the College, on the grounds that they were frivolous or vexatious. From details of various requests and applications made by Mr X to this Office under sections 7, 17 and 18 of the FOI Act since 17 December 2002, Mr Garvey was satisfied that the pattern of conduct still existed.

Having considered the College's description of the process in which it would have to engage if it were to provide Mr X with the requested records, Mr Garvey considered that expecting the College to do this amounted to an abuse of process and an abuse of the right of access.

Mr Garvey found the request to be frivolous or vexatious and that section 10(1)(e) applied to it. He also commented that he considered the request to have required the examination of such number of records as to cause a substantial and unreasonable interference with the work of the College (in which case section 10(1)(c) was applicable).

Date of Decision: 16.05.2006

Our Reference: 050364

16.05.2006

Mr X

Dear Mr X

I refer to your application to this Office under the Freedom of Information Act, 1997 (the FOI Act) for a review of the decision of Trinity College Dublin ("the College") on your request dated 13 October 2005.

I have been authorised by the Information Commissioner to conduct this review on her behalf.

Background

Your request, dated 13 October 2005, sought copies of "all College records that 'contain only personal information' relating to me but have not already been released to me under either the Freedom of Information Acts or the Data Protection Acts." You said that this included records that were previously exempted from release but in relation to which the exemptions relied on might no longer apply.

On 10 November 2005, the College issued its decision, which found that the request was so broad and unspecific that it would put an unreasonable burden on the College to respond. It said it was also refusing the request on the grounds that it was vexatious, and that section 10(1)(e) of the FOI Act applied.

You applied for an internal review of the College's decision on 11 November 2005. On 29 November 2005, the College upheld its decision. You made your application to this Office on 2 December 2005.

In conducting my review, I have had regard to your request, your application for internal review and your application to this Office, and to the College's submissions on this case and on case 050345. Those submissions also included details of other requests made by you. Although you were invited to make a submission to this Office, I note that you have not done so. Finally, I have conducted this review in accordance with the provisions of the Freedom of Information (FOI) Act, 1997, as amended by the Freedom of Information (Amendment) Act, 2003. Accordingly, all references in this letter to particular sections of the FOI Act, except where otherwise stated, refer to the FOI Act, 1997 as amended. 

Scope of Review

My review is concerned with the sole issue of whether the College's refusal of your request is in accordance with the FOI Act.

Findings

Section 10(1)(e) of the FOI Act provides that a request under section 7 may be refused if "the request is, in the opinion of the head, frivolous or vexatious, or forms part of a pattern of manifestly unreasonable requests from the same requester or from different requesters who, in the opinion of the head, appear to have made the requests acting in concert".

While regard must be had to section 8(4) of the FOI Act, which states that, "in deciding whether to grant or refuse to grant a request under section 7, (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", that provision also contains the phrase "[s]ubject to the provisions 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.  Like the Commissioner, 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".

Your appeal to this Office says that your request was quite specific and contained sufficient particulars to enable the appropriate records to be located. You also said that your request was not vexatious as it was not made to cause annoyance, but to gain copies of the records concerned for legal and other purposes.

The Information Commissioner's letter of discontinuance, issued to you in respect of 12 separate applications to this Office on 10 October 2003, goes into detail as to why she considered those applications to warrant discontinuance on the grounds that section 10(1)(e) applied. Her comments are relevant to my consideration of the College's application of section 10(1)(e) to your request in the appeal at hand. However, I do not intend to repeat the Commissioner's comments in detail in this decision letter, but I will refer to them where necessary. I will refer to the Commissioner's letter of discontinuance, dated 10 October 2003, as "the Commissioner's letter" in the remainder of this decision.

The Commissioner's letter said that she considers a request or an application to be "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 referred to 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? "

She noted that the outcome or cumulative effect of the requests is also a relevant consideration and that it was 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.

Pattern of Conduct

I have examined the factors listed above in the context of this case. As at 15 May 2006, I note that you have filed a total of 54 applications for review with this Office since January of this year, which (out of a total of 148 applications made to my Office from January 2006 to 15 May 2006), amounts to almost 37% of all applications made to this Office since January 2006. From 17 December 2002 to 16 February 2006, you made 107 requests under the FOI Act to the College, which altogether contain over 590 elements. I note that one request submitted on 9 January 2006 contains 49 elements, another submitted on 17 January 2006 contains 157 elements, and another submitted on 2 February 2006 also contains 49 elements.

I consider the request at issue in this case to be excessively broad, and that it is being used to revisit previous requests made by you, both under the FOI Act and the Data Protection Act. I also note that the College invited you to refine your request and identify specific records for (a) a period for which you did not previously request records under the FOI or Data Protections Acts, or (b) where significantly different circumstances might apply to a record previously refused under the FOI Act. However, you did not identify any such records.

The Commissioner's letter notes that you did not deny that most, if not all, of the requests relate to your grievances against the College, stemming initially from questions raised by Dr. Y, Course Director, over your compliance with the admissions requirements of the [title of Degree programme] and critical comments made by Dr. Y about your behaviour. The Commissioner also noted that you did not comment on the College's view that its response to your earlier FOI requests led to numerous additional requests relating to the requirements of the [title of Degree programme] course, your complaints against Dr. Y, and comments made by Dr. Y and others that you may view as critical of you.

She went on to say in that letter that:

"As your grievances against the College 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."

From details of the various requests and applications made by you under sections 7, 17 and 18 of the FOI Act since 17 December 2002, including that in the present case, I am satisfied that such a pattern of conduct still exists.

Abuse of Process

The Commissioner commented in her letter that she found your pattern of conduct to amount to an abuse of process. Indeed, I consider that you have made an unreasonably large number of requests to the College since 2003.

I concur with the Commissioner's comment in her letter that the College has been co-operative in dealing with your requests. I reiterate her view that, by their quantity and nature, your requests have produced an administrative burden that the College should not reasonably be expected to bear. You, in turn, have made no effort to reduce this burden, even when asked to do so in this particular case. Again, I would refer to the comments of the former Commissioner 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 stated in the Commissioner's letter, your requests are also unusually detailed and are often used to revisit issues, as is evidenced by the request the subject of this review. It would appear to me that the purpose of such requests is directed at accomplishing some objective unrelated to the access process.

The College has described the process that would be involved if the exercise to identify the requested records had been undertaken. It says that they would have to:

1. Collate copies of all records relevant to your requests for records under the Act which amounted to 238 individual requests over a three year period. It says that each would have to be considered as to whether or not it contained personal records.

2. Collate all material previously considered in response to your two requests under the Data Protection Act, which I understand amounted to three boxes of records. It says that a copy of material pertaining to the first such request (two boxes) was retained for a year after it was supplied to you, when it was destroyed. Thus, individual offices would have to source and copy that material again.

3. Compare the personal records withheld in response to the FOI requests with the material supplied under the Data Protection Act, identify records not previously released and decide if they should be released within the terms of the FOI Act.

4. Compare the personal records withheld in response to the Data Protection Act with the material supplied under the FOI Act, identify records not previously released and decide if they should be released within the terms of the FOI Act.

5. Identify any personal records in the College which have not been considered previously in response to either FOI or Data Protection requests and decide whether they should be released pursuant to the FOI Act.

It submits that as you tend to copy correspondence to members of the College widely, there is considerable duplication of materials held in different College offices, and that undertaking this exercise would have involved at least 13 College departments, all of which have been involved in supplying you with records over the past three years. It seems to me that expecting the College to do this amounts to an abuse of process, and, indeed, to an abuse of the right of access.

In summary, I am satisfied that your request is frivolous or vexatious and I find that section 10(1)(e) applies to it. It is not necessary for me to consider section 10(1)(b) as a result. However, I also consider it appropriate to say that your request would have required the examination of such number of records as to cause a substantial and unreasonable interference with the work of the College (section 10(1)(c)).

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the College to refuse your request on the basis that section 10(1)(e) of the FOI Act applies to it.

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

Yours sincerely

Seán Garvey
Senior Investigator