Case Number: 160530

Whether the Council was justified in refusing the applicant's request for information concerning complaints made about concerts held in Marlay Park under section 15(1)(g) of the FOI Act on the ground that the request was vexatious or that it formed part of a pattern of manifestly unreasonable requests from the same requester or different requesters who appear to be acting in concert

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

On 23 September 2016, the applicant submitted a request to the Council for details of the total number of complaints to the Marlay Park Concert hot line during the Marlay Park Concert construction period 2 July 2016 to 22 July 2016, and of the number of those complaints relating to noise.

The Council refused the request under section 15(1)(g) of the FOI Act on the ground that it was vexatious and in view of the number of requests made by a group of individuals who it considered to be acting as one. The applicant sought an internal review of the decision on 21 October 2016, following which the Council affirmed its decision. On 25 November 2016, the applicant sought a review by this Office of the Council's decision.

In conducting this review I have had regard to correspondence between the applicant and the Council in relation to the request and to correspondence between this Office and both the applicant and the Council on the matter.

Scope of Review

This review is concerned solely with whether the Council was justified in refusing the applicant's request on the basis that the request was frivolous or vexatious or formed part of a pattern of manifestly unreasonable requests.

Preliminary Matters

I wish to make a number of comments before I address the substantive issues arising. First, the FOI Act does not provide a right of access to information but rather a right of access to records. Therefore, the applicant's request for information has been interpreted as a request for records containing the information sought.

It is also important to note that this Office does not investigate complaints about the administrative actions of public bodies, nor does it examine the manner in which FOI bodies perform their functions generally.

Finally, section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that the decision was justified. Thus, the onus is on the Council to satisfy this Office that it was justified in refusing the applicant's request.

Analysis and Findings

Section 15(1)(g)
Section 15(1)(g) provides that an FOI body may refuse to grant a request if it considers that the request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests from the same requester or from different requesters who appear to have made the requests acting in concert. The section identifies three characteristics of a request which may lead to a decision to refuse a request; they are that the request is frivolous, is vexatious, or forms part of a pattern of manifestly unreasonable requests. While these are three separate characteristics, they may also overlap. Therefore, what is frivolous may also be vexatious, and what is frivolous and/or vexatious may also form part of a pattern of manifestly unreasonable requests.

This Office considers that a request may be regarded as frivolous or vexatious where it has either been 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 Commissioner has previously set out a number of non-exhaustive factors considered relevant in assessing whether a request may be categorised as frivolous or vexatious or as forming part of a pattern of manifestly unreasonable requests, including:

• 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? Alternatively, are the requests repetitive in character or are they used to revisit an issue that has previously been addressed?
• 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 sequencing of the requests - does the volume of requests or appeals increase following the initiation of court proceedings by the institution or the occurrence of some other related event?
• the intent of the requester - is the requester's aim to harass the public body or to break or burden the system?

In Case No. 110102, Mr X. on behalf of Irish Fire and Emergency Services Association and Dublin City Council, this Office explained that it considers the list of non-exhaustive factors in question to be equally relevant in determining whether or not there is evidence of a pattern of manifestly unreasonable requests.

In its submission of 8 February 2017 to this Office, the Council stated that it considers the applicant's request to be vexatious as, when taken in conjunction with a number of other information requests/complaints/FOI requests, an undue burden is being placed on it in respect of retrieving information and responding to each matter. The Council considers that the applicant is one of a number of individuals who are acting in concert in making numerous requests for information, both within and outside the FOI process.

The Council stated that the individuals in question made 21 requests to the Council in 2015, amounting to 12.9% of the requests received that year, and 30 requests in 2016, amounting to 17% of the requests received in that year. The Council also referred to the fact that its Customer Relations Management system has also recorded 83 items of correspondence from the individuals concerned.

The Council argued that the pattern of FOI requests is a vexatious use of the legislation. It argued that when the number of requests throughout the year is then taken into consideration, "the case becomes even more compelling that this campaign is draining the available resources within an already busy Department by requiring staff to divert resources into responding to these requests."

It appears that the other individuals with whom the Council believes the applicant has been acting in concert are members of a group known as South Dublin Protect Our Parks (SDPOP). According to its website, SDPOP comprises a group of residents and park users from the South Dublin area and beyond who wish to see a greater commitment to the protection and conservation of all regional parks from a heritage and ecological standpoint. Its main engagements to date have been connected to the concerts held in Marlay Park. According to the website, the group's objectives in relation to these concerts are to limit the impact on the local natural environment and Marlay's 18th century landscape as well as reduce the impact on local residents and the disruption to daily lives, and to protect Marlay Park, its wildlife, habitats, flora and fauna from any disturbance that may be caused by concerts or any other event that threatens to do so.

The applicant has confirmed to this Office that she has, indeed, been acting in concert with a group of people in making FOI requests. In her submission of 19 February 2017 to this Office, she stated that, following the 2016 concerts in Marlay Park, she agreed to act in concert with a group of people in making FOI requests, with a view to avoiding "duplication and administrative burden" on themselves and the Council. The applicant disputed the number of requests referred to by the Council, and took particular issue with its reference to complaints made, which she considered a separate matter to the FOI process.

She argued that, "Given the huge scale of the concerts and the negative impact they have on the park's landscape and wildlife ... the difficulties around access to the park and the dangers presented by speeding construction vehicles using the same pathways as pedestrians during concert construction/tear down, the excessive noise, the public drinking, public urination and anti-social behaviour on concert days in a residential area ..." it is not surprising that there are "a significant number of requests associated with the concerts by individuals and/or groups".

It seems to me that the Council's primary ground for classifying the applicant's request in this case as vexatious is that it considers the correspondence to have reached a point where the burden on the Council's resources is too great. I accept that the volume of requests the Council has received from members of SDPOP in relation to events taking place in Marlay Park is significant and that the requests represent a significant percentage of the overall number of requests received in the past two years. However, the volume of requests, of itself, does not mean that the requests are vexatious. Furthermore, while there is, without doubt, a pattern of requests from requesters acting in concert, the question I must consider is whether this pattern is one of manifestly unreasonable requests.

The use of Marlay Park for concerts and other events is, understandably, a matter of great concern to the local residents. I accept the applicant's argument that they cause considerable inconvenience and disruption to local residents. Indeed, this is a matter that has received media attention in recent years. As such, it is not unexpected that affected local residents would avail of their rights under FOI to inform themselves of all relevant issues in their ongoing efforts to seek a resolution to their concerns. This is not, in my view, a case of a requester or group of requesters making requests without reasonable or legitimate grounds or with the intent of harassing or overly burdening the Council.

I note that the applicant argued that her request did not fall to be refused under section 15(1)(g) because a Council member had previously suggested that requesters divide large requests into more manageable ones. She contended that the Council should therefore be expecting more requests. In support of her argument, she referred to a previous request which the Council refused to grant, on the ground that granting the request would have caused a substantial and unreasonable interference with, and disruption of work of, the Council. It appears that, having refused the request, the Council advised that if the requester wished to submit a new request for the information sought, where the scope had been narrowed, it would be reconsidered.

It seems to me that the applicant has misinterpreted the Council's advice in the particular case in question. The Council refused the particular request as it had concerns as to the disruption that granting the request would have caused to its other work. Resubmitting a number of smaller requests for the same information would not have alleviated that disruption. Nevertheless, it supports my view that it was not the intention of the applicant to burden or harass the Council when making the request that is the subject of this review. Rather, the various individuals appear to have been acting together in order to avoid duplication and the creation of unnecessary work, notwithstanding the fact that the significant volume of requests placed an administrative burden on the Council.

It is also important to note that the requests relate to matters of ongoing concern and which will arise again in the future. This is not a situation, for example, where the requesters are seeking to revisit an issue that has long since been determined. In all of the circumstances, I am satisfied that the request in this case was not made in bad faith and that it does not form part of a pattern of conduct that amounts to an abuse of process or an abuse of the right of access. I find, therefore, that the Council was not justified in refusing the request under section 15(1)(g).

For the benefit of all affected parties, I believe there may be some merit in SDPOP and the Council working together to determine if there may be a more appropriate way of dealing with the needs of the local residents in terms of the information that is made available to them. I note the Council's contention that it has placed an increasing amount of documentation in relation to the Marlay Park concerts and any post-event evaluations on its website, and this is very welcome. Indeed, greater proactive publication of information on matters of considerable interest is a significant tool in managing the number of FOI requests made on such matters. It may be that there is other specific information of interest to the residents that the Council may be in a position to make available through its website without the need for FOI requests.

On the other hand, I would also suggest that the residents should have due regard to the burden that the submission of volumes of requests on the issue places on the Council and how that impacts on the ability of the Council to expend resources on its ongoing function of management of the Park and events within the Park. It is important to note that a finding by this Office that the Council was not justified in refusing the request in this case does not mean that the Council can never deem subsequent related requests to be vexatious. I would again urge both parties to engage with a view to reaching an acceptable outcome for all, in terms of the release of information relating to the Park.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Council to refuse the applicant's request under section 15(1)(g) of the FOI Act. I direct that the Council undertake a fresh decision-making process on the applicant's request, in accordance with its obligations under 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.

Stephen Rafferty
Senior Investigator