Case 100298

The Senior Investigator found that Revenue was justified in its decision to refuse access to the records sought under section 10(1)(e) of the FOI Act. He affirmed the decision of Revenue in this case.

Case Summary

Whether Revenue was justified in its decision to refuse a request for records made under section 7 of the FOI Act on the grounds that the provisions of section 10(1)(e) of the FOI Act apply.

Date of Decision: 30.11.2011

Review Application under the Freedom of Information Acts 1997 and 2003 (the FOI Act) to the Information Commissioner

Background:

On 27 August 2010, the applicant sought the following information under section 7 of the FOI Act: 

"Enclosed please find copy of an extract of a letter from a Revenue official. This letter concerns Mr X and it includes incorrect information. This letter states ' I was aware that Mr X has a history of complaining about how he is treated by Revenue Staff".

In order to consider this matter further, I now request under the terms of the Freedom of Information Act:

1. Details of all such 'history of complaints'.
2. How the Revenue's concerns about my making a 'history' of complaints were brought to my attention by any Revenue Official, once they allegedly occurred".

Revenue refused the request on 28 September 2010 on the basis that section 10(1)(e) of the FOI Act applied as it had formed the view that the request was vexatious. The applicant applied, by letter dated 19 November 2010, for an internal review of Revenue's decision. In its internal review decision, dated 13 December 2010, Revenue affirmed the original decision. On 15 December 2010, the applicant applied to the Information Commissioner for a review of Revenue's decision. The letter was received in this Office on 23 December 2010.

Scope of the Review

The review is concerned solely with the question of whether or not Revenue is justified, within the terms of the FOI Act, in refusing the request on the grounds that the provisions of section 10(1)(e) of the FOI Act apply.

Submissions

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Findings

In reviewing this case, I have had regard to the following:

• the correspondence which passed between the applicant and Revenue in relation to this request,
• Revenue's comprehensive submission dated 8 March 2011 to this Office,
• further correspondence from the applicant in relation to the application for review, and
• the provisions of the Freedom of Information Act, 1997, as amended by the Freedom of Information [Amendment] Act, 2003.

Section 10(1)(e)

Section 10(1)(e) states that:

"(1) A head to whom a request under section 7 is made may refuse to grant the request if-

(e) 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....."

In Case Number 020375, Mr X and RTÉ, the former Information Commissioner referred to his earlier comments in Case Number 99151, Mr. ABW and the Department of Enterprise, Trade and Employment (both cases are available at www.oic.ie ) on the interpretation of section 10(1)(e) of the FOI Act prior to its amendment by the FOI (Amendment) Act, 2003. In his earlier decision, the former Commissioner considered it appropriate, in determining whether a particular request is "frivolous or vexatious" 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. The former Commissioner noted that, while the Act demands that public bodies meet very high standards in dealing with requests, the corollary is that the legislation assumes reasonable behaviour on the part of requesters. Having noted that a "pattern of conduct" requires recurring incidents of related or similar requests on the part of the requester, the former Commissioner then went on to identify certain patterns of conduct which can amount to an "abuse of process". He summed up by stating that, "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."

In applying his earlier comments to the circumstances of Mr. X and RTÉ, the former Commissioner acknowledged that, standing alone, the seven requests under review did not constitute "recurring incidents of related or similar requests" and hence a pattern of conduct. Nevertheless, having considered the nature of the relationship between the seven requests and other requests made to RTÉ together with the nature, frequency and time within which the seven requests were made to RTÉ, he concluded that a pattern of conduct did exist. The former Commissioner also considered it relevant to determine whether an abuse of the right of access existed. He examined the seven requests in the context of Mr. X's total requests to RTÉ and his dealings with this Office. He also considered the outcome or cumulative effect of Mr. X's requests. He concluded that the seven requests, viewed in the context of Mr. X's total requests to RTÉ, amounted to an abuse of the right of access.

Accordingly, it seems to me that a request or an application may be regarded as "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 RTÉ decision:

"(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?"

In my view, the approach adopted by the former Commissioner in the aforementioned cases in the consideration of the application of section 10(1)(e) is relevant to this review.  I have examined the factors listed above in the context of this case. Revenue informed this Office that the applicant made 41 requests under the FOI Act since 2007 and having conducted an analysis of those requests, determined that 33 of the requests relate directly to the complaint/grievance he has with Revenue. Revenue considers that the general pattern of requests suggests that the FOI process and the right of access are being utilised as an integral part of the applicant's strategy in furtherance of his dispute. Revenue noted that this point was particularly manifest and quite explicit in a number of the FOI requests as follows:

• In request 8465/2009, dated 10 August 2009, he requested "details of sick leave taken by staff in Revenue, Kerry District in 2006,2007 and 2008..." In a postscript to this letter he stated: "The requests for information under FOI will have to continue until our(sic) concerns are fully dealt with by Revenue in an open and transparent manner."
• In case 9858/2009 dated 1 October 2009, the request was for certain details concerning the number of breaches of client confidentiality by Revenue since 2005 and particularly: "We(sic) request... the number of such cases for 2005, 2006, 2007 and 2008 for the Kerry District..." In a postscript to this request, he added the following: "As previously advised, requests for FOI will have to continue until our serious reservations about the operation of the Kerry Division are fully dealt with by Revenue in an open and transparent manner. In simple terms Revenue will have to withdraw, in writing and apologise for describing my actions as 'unprofessional' and 'bullying'. This to me is a reasonable request as no evidence has been forwarded to back it up".
• In another request 7172/2010 dated 2 September 2010, in an extraneous comment subsequent to a FOI request, he added: "... From my perspective I have no option but to write until some one(sic), within Revenue, deals with the issues in a full and transparent manner and takes responsibility for what has gone on to date".
• In another request 9351/2010 (which post dates this present request) dated 30 November 2010, he added the following extraneous comments: "I have requested on various occasions for these terms [bully, unprofessional] to be unreservedly withdrawn and a full apology to issue. This has not been done so I have to continue writing to vindicate my good name and reputation. The failure to unreservedly withdraw and apologise means that I, as a professional tax practitioner am being discriminated against".

It appears to me that the applicant is using the FOI process with a view to pursuing a grievance which Revenue considers to have already been fairly and adequately addressed. It further appears from the foregoing that at least some of the requests were made in somewhat less than good faith. In Revenue's view, they appear to signal an intention on the applicant's part to continue to engage in making further requests, with an implied threat to use the process to disrupt and cause inconvenience to the normal operations of Revenue's internal administrative processes and structures. I agree.

With regard to the FOI request which led to this particular review, Revenue suggested that the purpose of the request is to achieve an objective other than the seeking of access to records.  It concluded that the request was a re-constitution of previous requests for access to records with a view to revisiting the applicant's request that Revenue issue a statement to him withdrawing the terms "bullying" and "unprofessional" from a letter of 1 May 2009 and apologise to him for the use of these terms, an issue which the Revenue believes to have been already addressed in a letter dated 16 July 2010 from a senior Revenue official to him.  The applicant confirmed to this Office, in a letter dated 28 January 2011, that the matter [of the review] could be closed if Revenue issue a letter withdrawing the terms in question.  I further note that the applicant made a request for access to records under section 7 of the FOI Act notwithstanding the fact that he is aware of his right to seek to have a record amended in accordance with the provisions of section 17 of the FOI Act.  In my view, the pattern of behaviour of the applicant amounts to an abuse of the right of access and even to an abuse of the FOI process.  Accordingly, I find that Revenue was justified in refusing the request on the grounds that the provisions of section 10(1)(e) of the FOI Act apply.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of Revenue to refuse the request under section 10(1)(e) of the FOI Act.

Right of Appeal

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 on which notice of the decision was given to the person bringing the appeal.

Seán Garvey

Senior Investigator

30 November 2011