Case Number: 170088

Whether the Body was justified in refusing to grant a request for access to records held by its HR department concerning a "procurement process competition"/appointment and selection process on the basis that the request is frivolous or vexatious

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 description that I can give of the circumstances of this case is very limited since disclosure of detail could identify the applicant and disclose personal information about him.

On 8 September 2016, the applicant made an FOI request to the Body, for all files held in its HR Department on a "recent procurement process competition" for the provision of certain services "in relation to ... [certain roles specified] appointment and selection procedures. "

The Body, through its solicitors, issued its decision to the applicant's solicitors on 12 October 2016. The letter referred to a Settlement Agreement (the Agreement) that had been entered into between the applicant and the Body in [DATE DELETED], through their respective solicitors, regarding certain matters of dispute. It said it considered the request to be frivolous, vexatious and unreasonable in nature given the fact of the Agreement and the nature of the dispute that led to it. It said that it was thus refusing the request under section 15(1)(g).

The applicant sought an internal review of this decision on 28 November 2016. On 15 December 2016, the Body's internal review decision affirmed its earlier refusal of the request. On 19 December 2016, the applicant sought a review by this Office of the Body's decision while also making an application for review in respect of another, separate request. Due to an oversight on this Office's part, for which I apologise, the application was not fully processed until March 2017 and therefore has a 2017 reference number rather than a 2016 one.

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above; and to correspondence between this Office, the Body, and the applicant. I have had regard also to the Agreement and to the provisions of the FOI Act.

Scope of the Review

This review is confined to whether or not the Body has justified its refusal, under section 15(1)(g) of the FOI Act, to grant the applicant's request. I cannot have regard to any other matters, including how the Body treated the applicant's FOI request.

Findings

Section 15(1)(g)
Section 15(1)(g) is a discretionary ground for refusing access to a record. It applies where 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 or from different requesters whom the body considers to have made the requests acting in concert.

This Office has found in other cases 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. A number of non-exhaustive factors are 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?
• 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?

The applicant's position is that the Body's decisions are not objective or fair. He says his requests are not motivated by frivolous or vexatious grounds and that they arise from his legitimate and Constitutional entitlement to protect his professional reputation and good name from acts or omissions by the Body that sought to damage him after he stopped working for it. He wants to be able to assure others that he is entitled to his good name. He says that the Body has damaged, and continues to damage, his reputation. He says he considers the Agreement to have been extracted under duress and to be null and void, and also that certain acts by the Body breached the Agreement. The applicant also says that the Body is refusing to grant his requests in order to cover up misconduct by its senior management. He says at no point did he concede that he would not try to expose the Body's behaviour.

The Body says that the applicant's solicitors approached it to resolve the matters of dispute, further to which the terms of the Agreement were negotiated and entered into. It does not accept that the agreement was entered into under duress, or that it is null and void. It says that the Agreement is legally binding and it is not open to one party to it to reopen matters that it resolved. The Body considers the request to be frivolous and vexatious; that it is seeking to accomplish a motive unrelated to the FOI process; and, given the existence of the Agreement (and the context in which it was concluded), that it was made in bad faith.

The Body is not claiming that the number of requests made by the applicant is excessive. In any event, I am aware of only two other requests made by the applicant (one purporting to revise the other, and the subject of my decision in Case No 160563). Three requests are, of themselves, not excessive. Neither has the Body alleged that the applicant's aim is to harass it.

As regards the nature and scope of the request, the applicant seeks "all files" relating to the matters the subject of his request as held by the Body's HR department. I am unable to make any finding on whether the request is excessively broad because I have no details or arguments before me in this regard. The reason why I can make no such finding is down to both how the applicant worded his request and how the Body interpreted it. The request is somewhat confusing. While it clearly specifies records held by the HR department, it describes the requested records as concerning both the procurement or provision of certain services and the appointment and selection procedures for certain roles. HR departments are generally understood to be concerned with recruitment and related functions. Procurement functions/offices are generally understood to be distinct from HR and concerned with the acquisition of goods and services.

In the normal course, one would expect an FOI body that receives a confusing request to simply contact the requester and clarify exactly what has been requested. The Body did not do so in this case because it says it considered the request to have been clear and unambiguous. It says that the applicant has worked at the Body for an extensive period of time. The Body clearly considers the applicant to have a detailed knowledge of the processes in place in the Body, including the procurement process. Focussing on that part of the request seeking records concerning the procurement competition for the provision of particular services, the Body says that the applicant would have made a request referencing its Procurement department if he had wanted records from that office. It maintains that its HR department holds no records concerning procurement.

While the lack of procurement-related records in the HR department seems reasonable, the Body does not appear to have considered the further aspect of the request that concerned records of the appointment and selection procedures for certain specified roles. One would expect the HR function to hold such records. I will return to this later.

While I consider the applicant's request to be poorly worded, I do not consider that I have a sufficient basis on which to find the wording used to be indicative of the request being frivolous or vexatious.

Section 13(4) of the FOI Act generally requires public bodies to disregard any reasons for the request. However, a requester's motive for making an FOI request is relevant when considering the application of section 15(1)(g).

In my decision on Case No 160563, which concerned the applicant's request to the Body for records concerning himself, I explained that this Office's role does not extend to examining, or making any findings on, whether the Agreement is valid, whether the Body may have breached it, or whether the applicant is breaching it by making this FOI request. Such issues are matters for the Courts. However, the fact that the applicant and the Body negotiated and entered into the Agreement is, in my view, evidence of a reasonable belief on the Body's part that the two matters of dispute had been concluded.

The request at issue seeks records concerning a procurement/recruitment process that would appear to post date the matters of dispute, albeit it concerns recruitment to the specific area where the applicant worked. The Body has not explained why it might consider the request to have been made for "nuisance value", or why it might have been intended to revisit the matters of dispute and/or to accomplish an objective unrelated to the access process.

Conclusion
I do not consider that the Body has justified its application of section 15(1)(g) to this request in the particular decision under review.

Are Relevant Records Held?/Adequacy of Search
As noted earlier, the Body maintains that its HR department holds no records concerning procurement. This suggests that it would consider section 15(1)(a) of the FOI Act to apply to such records. Section 15(1)(a) provides for the refusal to grant a request where the requested records do not exist or cannot be found after all reasonable steps to find them have been taken.

However, I do not intend to make any findings on section 15(1)(a) in this case. I have no submissions before me in relation to this provision. While it may well be that the HR function does not hold what one would generally consider to be procurement-related records, the request seeks other records that one would expect to be held in the HR area. I am remitting the request back to the Body and directing it to consider it afresh. As part of this fresh consideration, it should clarify the scope of the request with the applicant, following which it should confirm to him its understanding of the request. While I accept that there is a strained history between the parties, I must emphasise that attempts by an FOI body to clarify requests (which should normally be done in writing) serve to minimise confusion as to the nature of records sought, and in turn the amount of work involved in dealing with an FOI request. Furthermore, while the FOI Act demands that FOI bodies meet very high standards in dealing with FOI requests, this Office takes the view that the Act assumes reasonable behaviour on the part of requesters.

The Body's Description of Appeal Rights
The Body's decision of 12 October 2016 referred in summary terms to the applicant's right of review. Given that the decision was being sent to the applicant's solicitors, it would seem the Body considered that the applicant's solicitors should have been able to properly advise their client of his rights of review. This may well be true but it does not absolve the Body from its obligation to comply with section 13(2) of the FOI Act which sets out what all decisions "shall specify". In particular, section 13(2)(f) sets out what a decision must contain regarding rights of review.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Body's refusal of the applicant's request under section 15(1)(g). I remit the request to it for fresh consideration. Having clarified its scope with the applicant, the Body is required to make a fresh decision on the request and to inform the applicant of its decision in accordance with section 13 of the FOI Act. That decision is subject to the usual rights of internal and external review.

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