Whether the Hospital was justified in refusing the applicant-™s request for access to records pertaining to all correspondence between the Hospital and this Office in relation to two previous reviews concerning the applicant under section 15(1)(g) and the Hospital on the ground that the request was frivolous or vexatious

10/08/2018

Background

In January 2018, I issued decisions following my review in two cases concerning the applicant and the Hospital (Cases 170397 and 170398). In both cases I found that the Hospital was justified in refusing access to certain records under section 15(1)(a) of the FOI Act on the ground that they did not exist. On 9 February 2018, the applicant submitted a fresh request to the Hospital for all correspondence between the Hospital and this Office relating to those reviews.

As the Hospital failed to issue a decision on the request within the statutory time-frame the applicant sought an internal review of the deemed refusal of its request on 17 March 2018. As the Hospital also failed to issue an internal review decision within the required time-frame, the applicant sought a review by this Office of the refusal of the request. 

Following correspondence with this Office, the Hospital issued its effective position to the applicant on 18 May 2018, in which it refused the request under section 15(1)(g) on the ground that it was made in bad faith. On 19 May 2018, the applicant informed this Office that it wished the review to proceed. 

I consider it appropriate to conclude this review by way of a formal, binding decision. In conducting my review, I have had regard to the correspondence between the Hospital and the applicant outlined above and to correspondence between this Office and both the Hospital and the applicant on the matter.

Scope of Review

This review is solely concerned with whether the Hospital was justified in its decision to refuse the applicant-™s request under section 15(1)(g) of the FOI Act.

Preliminary Matters

It is important to note that under section 22(12)(b), a decision to refuse to grant a 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 Hospital to satisfy this Office that it was justified in refusing the applicant-™s request.

Analysis and Findings

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.  The section identifies three characteristics of a request which may lead to a decision to refuse a request; namely that the request is frivolous, vexatious, or forms part of a pattern of manifestly unreasonable requests.  While these are three separate characteristics, there may often be a degree of overlap.  For example, a request that 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 Hospital argued that the request was made in bad faith based on its view that records of this Office relating to the performance of the functions of the Commissioner are not subject to the FOI Act and that access would not be granted to the records at issue by making a request to this Office

The Hospital is mistaken in its understanding of the applicability of the FOI Act to records relating to the performance of the functions of the Commissioner. Prior to the introduction of the FOI Act 2014, it was, indeed, the case that the FOI Acts 1997 & 2003 did not apply to records relating to reviews undertaken by the Commissioner (section 46(1)(c)(i) refers). This meant that such records could not be accessed under the Acts, regardless of whether they were held by this Office or any other public body that was subject to the Acts. However, this is no longer the case.

Under the FOI Act 2014, this Office is now listed in Schedule 1, Part 1(q), as a partially included agency. In essence, this Office is a public body only in respect of records relating to general administration of the functions of the Commissioner. As such this Office is not required to grant access to records relating to reviews. However, this exclusion does not extend to such records held by other public bodies. It is open to requesters to seek access to records relating to reviews that are held by other public bodies and it is a matter for the public bodies concerned to decide, based on the provisions of the Act, whether access to the records sought should be granted.

In my view, the mere fact that records relating to a review cannot be accessed by making a request to this Office does not mean that a request for access to copies of such records held by the public body that was party to the review can be regarded as having been made in bad faith. During the course of this review, Ms. Swanwick of this Office wrote to the Hospital and invited it to make a submission in support of its decision to refuse access to the applicant-™s request under section 15(1)(g). The Hospital failed to provide any further details to this Office. As I have outlined above, section 22(12)(b) places the onus on the Hospital to satisfy this Office that it was justified in refusing the applicant-™s request.  Having carefully reviewed the Hospital-™s effective position, I do not consider that the Hospital has justified its decision to refuse the applicant-™s request on the basis of section 15(1)(g).

However, as the Hospital appears to have taken a "blanket" approach to the refusal of the request, I do not consider it appropriate to simply direct the release of all records coming within the scope of the applicant's request which ought to have been considered by the Hospital in the first instance.  Consequently, it seems to me that the most appropriate course of action to take is to annul the decision of the Hospital and to direct it to undertake a fresh decision-making process in respect of the request. The applicant will have a right to an internal review and a review by this Office if it is not satisfied with the Hospital-™s decision.  In making this decision, the Hospital must comply with the statutory requirements of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Hospital-™s decision to refuse the applicant-™s request for access to records pertaining to all correspondence between the Hospital and this Office in relation to two previous reviews concerning the applicant and the Hospital and I direct the Hospital to undertake a fresh-decision making process on the applicant-™s request.

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