Whether the Council was justified in refusing the applicant's request for records relating to a certain planning matter on the ground that the request forms part of a pattern of manifestly unreasonable requests

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant submitted a request to the Council in December 2014 for a broad range of records relating to a planning matter. While the request was set out under seven separate headings described as items A to G, the request specified 28 records or categories of records that were sought. By letter dated 12 February 2015, the Council refused the request under section 15(1)(g) of the FOI Act. The applicant sought an internal review of this decision by letter dated 18 February 2015. In its internal review decision, the Council refused the request under section 15(1)(g) on the ground that it forms part of a pattern of manifestly unreasonable requests from the same requester. The applicant applied to this Office for a review of that decision on 8 May 2015.

During the course of the review, Mr. Christopher Campbell of this Office invited both the applicant and the Council to make submissions on the matter. Having received submissions from both parties, I consider that this review should now be brought to a close by means of a formal binding decision. In conducting this review I have had regard to the submissions of both parties, to the further correspondence between this Office and the Council and to correspondence between the Council and the applicant in relation to the FOI request.

Scope of Review

This review is solely concerned with the question of whether the Council was justified in its decision to refuse the applicant's request under section 15(1)(g) of the FOI Act on the ground that the request forms part of a pattern of manifestly unreasonable requests from the same requester.

Analysis and Findings

A request may be refused under section 15(1)(g) if the public body considers that the request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests from the same requester. It is relevant to note that section 13(4) of the FOI Act allows a public body to take into account the motive of a requester when considering if section 15(1)(g) applies.

In case Nos. 110102 & 110198 (available on this Office's website at www.oic.gov.ie), this Office explained that the Commissioner has previously set out a number of non-exhaustive factors considered to be relevant in assessing whether a request may be categorised as frivolous or vexatious and that these factors are equally relevant in determining whether or not there is evidence of a pattern of manifestly unreasonable requests. The factors include;

• the number of requests made - are they considered excessive by reasonable standards?
• the nature and scope of the requests - are they excessively broad and varied in scope or unusually detailed?
• the purpose of the requests, e.g. have they been made for their "nuisance value"; are they made without reasonable or legitimate grounds; and/or are they intended to accomplish some objective unrelated to the access process?
• the intent of the requester - is the requester's aim to harass the public body?

 

I have adopted that same approach for the purpose of conducting this review. The FOI request at issue in this case has its background in a dispute between clients of the applicant and the Council relating to a planning matter and dating as far back as 2006. At the date of its submission to this Office, the Council stated that the request was the thirty ninth request received from the applicant, dating from February 2008 all of which requests related to the site that is the subject of the dispute. During the course of this review the Council and the applicant both informed this Office that the applicant had further submitted a fortieth request to the Council, dated 13 July 2015, which also related to the matter. The Council argued that the requests have been repetitive and in some cases do not represent requests for records but instead seek replies to questions. The Council further argued that at certain points the applicant sought access to records which could not in fact exist and that at other points the applicant's requests were unintelligible. It argued that every effort was made to facilitate the requests over the past seven years.

As I have outlined above, the FOI request at issue in this case covers a broad range of records relating to the same planning matter and specifies 28 records or categories of records sought. I also note that the request, at parts, seeks clarification of certain matters as opposed to seeking specific records. For example, under item E, details of the location of a specific letter on a particular matter on a specific date are sought as are details of the file on which the record was found. Indeed, the request appears to take a rather forensic approach to seeking clarification of certain matters. The FOI Act provides for a right of access to records as opposed to a right of access to information. It does not require public bodies to provide clarification of any matter that a requester considers to be relevant where the information sought is not contained in a specific record.

In my view, the request at issue is both excessively broad and unusually detailed. I have also examined a sample of other FOI requests that the applicant submitted to the Council on the planning matter, specifically the FOI requests dated 20 June 2013, 7 August 2013, 18 September 2013, 13 January 2014, 13 February 2014, 6 May 2014, 24 July 2014, 30 July 2014, 8 September 2014, 24 September 2014, and 13 July 2015. All of the requests in question are set out in a similar manner to the request that is the subject of this review. Having reviewed the dates of receipt of the requests it is apparent that, while the applicant has consistently submitted numerous requests annually, the frequency of the requests has intensified since 2014. I accept that the number, frequency (10 since January 2014), and level of detail of the applicant's requests places a very high administrative burden on the limited resources of the Council.

In essence, it seems to me that the applicant has engaged in a pattern of submitting detailed broad requests with a view to pursuing a dispute that has been ongoing for a number of years and that the FOI Act is being used for a purpose unrelated to the right of access to records, i.e. it is being used tactically for the purpose of pursuing the dispute. Having regard to the number of request made by the applicant relating to the same matter, and to the excessively broad and detailed nature of those requests, I am satisfied that that the Council was justified in deciding to refuse the request at issue on the ground that it forms part of a pattern of manifestly unreasonable requests from the same requester. I find, therefore, that section 15(1)(g) applies.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Council.

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 four weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator