Case Number: 160483, 160484, 160485 and 160486

Whether AIT was justified in its decision to refuse the applicant's request for records relating to interactions he had with AIT regarding issues relevant to his role in 2011-2012 and 2015-2016, on the grounds that section 15(1)(g) and 15(1)(i) applied.

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

Background

The applicant made four separate FOI requests, all dated 20 June 2016, each comprising a number of specific points seeking access to records relating to interactions he had with AIT regarding issues relevant to his role in 2011-2012 (160483 and 160484) and 2015-2016 (160485 and 160486). AIT made a single decision dated 13 July 2016 on all four requests, refusing access to the records sought on the basis that sections 15(1)(g) and 15(1)(i) of the FOI Act applied. The applicant made an internal review request on 8 August 2016, and AIT's internal review decision of 25 August 2016 affirmed the original decision. On 2 November 2016, the applicant made four separate applications for review to this Office.

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of AIT, and to the provisions of the FOI Acts. I have decided to conclude the review by making a formal, binding decision.

Scope of Review

This review is concerned solely with the question of whether AIT was justified in refusing access to the information sought on the basis that section 15(1)(g) and 15(1)(i) applied.

Preliminary matters

Composite decision
In the circumstances of this case, where the FOI body issued a single decision on all four requests, and where the grounds for refusal are not directly related to the content of the particular records at issue, I have decided that a composite decision is appropriate in these cases.

Previous requests to AIT
The applicant made an FOI request to AIT in April 2015, which was a mixed request for a statement of reasons and for access to records, relating to the 2011-2012 interactions with AIT. The request was refused on the basis that section 15(1)(d) of the FOI Act applied i.e. that the information was already in the public domain. The applicant sought a review by this Office, and so the matter became the subject of two reviews (150162 and 150182), due to the separate legislative provisions applying to requests for statements of reasons under section 10. Both of these review applications were subsequently withdrawn by the applicant due to issues with the scope of the request/review, and so no determination was made by this Office on the decision of AIT in these earlier cases.

The applicant made four further requests to AIT for statements of reasons under section 10 of the FOI Act, in March, April and May 2016. One of these, which related to the 2011-2012 matter, was refused by AIT. The other three related to the 2015-2016 matter, and reasons were given for each item in these requests. All four requests are also the subject of applications for review to this Office (160486-160490) submitted on 2 November 2016, and remain to be determined.

Other related requests/applications for review
The applicant made requests for access to records and for statements of reasons to two other FOI bodies generally relating to the same issues. Four of these requests were also the subject of applications to this Office submitted on 2 November 2016. In the circumstances, this Office determined that the most effective approach to dealing with the multiple applications from the applicant was to address those to the FOI bodies other than AIT first, and then address the issues in these reviews.

Section 22
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

The FOI Act provides for a right of access to records held by an FOI body, subject to certain exemptions. The release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

It is relevant to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Analysis and Findings

AIT refused access to the information sought on the grounds that sections 15(1)(g) and 15(1)(i) applied.

Section 15(1)(g)
Section 15(1)(g) of the FOI Act provides for the refusal of a request that is considered to be frivolous or vexatious, or to form part of a pattern of manifestly unreasonable requests. This Office 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 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.
In its original decision, AIT cited five previous requests from the applicant. It went on to say that the decision makers were "satisfied that a pattern of unreasonable requests now exists" and that AIT had made every effort to answer the applicant's queries prior to his FOI request. This Office asked AIT for a submission in support of its position. In its submission, AIT again referred to the previous five requests. AIT was asked to provide copies of the requests and decision making documentation on the previous requests. On examination of this documentation, it emerged that four of the five requests cited were in fact requests for statements of reasons under section 10 of the FOI Act, which are the subject of separate review applications to this Office (160487-160490). The fifth request cited is the mixed request of April 2015 referred to above.

In its submission, AIT also referred to its response of December 2011 to a request for voluntary discovery from the applicant in the context of court proceedings [...]. A copy of the affidavit of discovery was provided to this Office. In the circumstances of these reviews, AIT has not prepared a schedule of records; neither has it specifically identified what relevant records were provided to the applicant under discovery.

However, an examination of the voluntary discovery schedule indicates that many of the records listed predate part or all of the specified timeframes in many parts of the FOI requests, and it is unclear whether the actual records listed would be relevant to the request.

AIT further referred to a Settlement Agreement between the applicant and others and AIT [....], by which the court proceedings referred to above were concluded, and states its view that, as the queries in the FOI request directly pertain to the subject matter of the settlement agreement, they should not be reopened under FOI. AIT refer specifically to a clause in the agreement which refers to full and final settlement of the matters the subject of the court proceedings.

It is not clear to me that there is any link between the 2015-2016 matter and the 2011-2012 matter and AIT has not in its submission or decision made any reference to there being a specific link between the two issues/time periods. In the absence of any evidence of a link, I do not see the relevance of the settlement agreement or the material provided under discovery to the requests relating to the 2015-2016 matter.

It is clear that there has been extensive engagement between the applicant and AIT on various matters in 2011-2012 and on what appear to be separate matters in 2015-2016, both of which are the subject of the requests at issue here. However, the question that I must determine is whether AIT has demonstrated that its decision that section 15(1)(g) applies is justified. In considering the matter, I also looked at the previous requests on which AIT are relying in claiming that section 15(1)(g) applies. In particular, the AIT decision on the applicant's April 2015 request which was refused on the grounds of section 15(1)(d) is questionable. There is no indication that the material sought is publicly available, nor has AIT set out where such material is publicly available in its decision. In material provided to this Office by AIT in relation to the earlier reviews (150162 and 150182), it sets out more detail in relation to this decision. While not making any determination on this, it appears that section 15(1)(d) was not an appropriate ground for refusal of the earlier request. The fact that the material was, according to AIT, made available to the applicant under voluntary discovery is not the same as "publicly available".

In all the circumstances of these cases, taking account of the previous decisions on which AIT are relying and considering its response in the context of the approach set out above, I am not satisfied that AIT has justified its position that section 15(1)(g) applies and I find accordingly.

Section 15(1)(i)
Section 15(1)(i) of the FOI Act provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester, and the records are available to the requester concerned. There is no indication that any records were released to the applicant in response to his FOI requests for access to records. As set out above, any records provided in response to the applicant's request for voluntary discovery are dated no later than December 2011. This does not address any requests of parts of requests which post date December 2011. In claiming that section 15(1)(i) applies, I would expect an FOI body to provide some evidence as to how and when the records sought were previously provided to the requester and furthermore, the question of whether the records are available to the requester is also relevant.

I am not satisfied that AIT has justified its position that section 15(1)(i) applies and I find accordingly.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of AIT. I direct AIT to conduct a new decision-making process on the applicant's FOI request.

Furthermore, for clarity, I specify that the statutory time limit for the making of the decision begins on the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator