Whether the Body was justified in refusing to grant two requests for access to records relating to particular legislation, on the ground that the requests are frivolous or vexatious

18 October 2018

Background

The applicant has been involved in a protracted dispute with the Body, reaching back a number of years, stemming, essentially, from his views as to the manner in which the Body interpreted and acted under particular legislation. 

The applicant made two requests to the Body, on 27 March 2018 and 13 April 2018, respectively. In the first, he sought a broad range of records relating to exchanges between the Body and the Office of the Ombudsman regarding:

• a particular legislative provision and
• resolution of certain Ombudsman cases concerning statutory outcomes in relation to that legislative provision  

In the second, he sought a variety of records relating to the same legislative provision, stating this was to confirm that the Body-�s systems conform with the law.

The Body refused both requests under section 15(1)(g) of the FOI Act. Following requests for internal review, the Body affirmed both decisions. The applicant subsequently sought a review by this Office of those decisions.  

I have considered both applications together, as the parties to each review are identical and the requests are related. During the course of the review, both parties made submissions in support of their respective positions. I note that Mr Flood of this Office provided the applicant with details of the Body-�s arguments and explained his view that the Body was justified in refusing the requests under section 15(1)(g). Mr Flood also offered the applicant an opportunity to withdraw his applications. However, he declined to do so. Accordingly, I have decided to conclude this review by way of a formal, binding decision. 

In conducting the review, I have had regard to the communications between the parties, as above, and to those between this Office and both parties on the matter. I have also had recourse to the court judgment in a case brought by the applicant, and surrounding facts, which comprise elements of the parties' submissions.  

Scope

This review is concerned solely with the question of whether the Body was justified in refusing the requests on the basis that they are frivolous or vexatious or form part of a pattern of manifestly unreasonable requests. 

Preliminary Matters

I wish to make a number of comments before addressing the substantive issues arising in this case. First, during the course of the review the applicant submitted information concerning a range of allegations against the Body. He also provided details of a variety of submissions he appears to have made to a number of authorities regarding his concerns about various actions of the Body. It is important to note that I can make no determination as to the legal status of those submissions. Furthermore, this Office has no role in considering the veracity of any such allegations, nor is it within the remit of this Office to examine the manner in which public bodies conduct their functions generally. 

It should also be noted that a decision by this Office is by way of a hearingde novoin light of the facts and circumstances applying at the date of the review by this Office, rather than any facts and circumstances that applied at an earlier date.  

Finally, in order to preserve the anonymity of the applicant, it has been necessary to amend and omit certain details in the body of the published version of this decision. 

Analysis and Findings

Section 15(1)(g)
Section 15(1)(g) is a discretionary ground for refusing access to a record. There are three separate characteristics of a request which may lead to a decision to refuse access under the section: that the request is (i) frivolous, (ii) vexatious, or (iii) 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. These characteristics 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. The requests do not, of themselves, have to be manifestly unreasonable for a finding of vexatiousness to be made. 

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 sequencing of the requests: does the volume of requests or appeals increase following the initiation of court proceedings or 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?

While section 13(4) of the FOI Act generally requires public bodies to disregard any reasons for the making of the request, a requester's motive for making a request is relevant when considering the application of section 15(1)(g). So too is the cumulative effect of the requests. It is further appropriate to consider the requests under review in the context of other requests made to the FOI body, as well as the requester's dealings with this Office and the FOI body concerned. The High Court has approved of this approach inGrange v Information Commissioner [2018] IEHC 108.

Dealings with the Body
It appears that the dispute between the parties originated in an objection by the applicant a number of years ago to the implementation by the Body of certain legislative provisions. The applicant considered actions of the Body in that regard to be unlawful and suggested a stay be put on such actions until his concerns were reviewed. According to the Body, the actions in question reflected Government policy. The applicant maintained his objections and the dispute between the parties continued for a number of years. 

The applicant subsequently initiated legal proceedings in relation to the dispute.

From the records before me, it appears that, subsequently, the applicant sought to have his concerns about the legislation, and regarding various other actions of the Body, examined by a range of additional authorities, on the basis that the actions in question constituted maladministration, misconduct, and/or corruption. 

The applicant's most recent such engagement appears to have occurred in 2018. 

The Body-�s position is that the applicant's use of FOI in this case amounts to an abuse of the right of access, in the context of a wider pattern of conduct on his part spanning a number of years. According to the Body, it has received 17 FOI requests from the applicant since 2015. It stated that two requests were made in 2015, one of which specifically concerned a matter the subject of the requests in this case, and the other a matter I am satisfied relates to the subject matter of the requests at issue. It stated that the applicant has made 11 requests since 23 October 2017, including the two at issue in this review. Having considered the nature of those requests, I am satisfied that they are all related to his ongoing dispute with the Body. 

While the number of requests in question does not, of itself, necessarily seem excessive, the requests must be considered in the wider context of the interactions outlined by the parties in their submissions. 

Applicant's Position

The applicant contends that the Body has, essentially, sought to mislead this Office in its submissions. He submits that those submissions contain information "mostly irrelevant" to this case, as the requests at issue do not, as the Body stated, relate to others made by him, in the context of the pattern of engagements outlined above.    

He argues that the requests at issue are separate and distinguishable from any previously made by him because the legislative provisions in question in this case affect persons different to those affected by provisions the subject of his previous requests. Furthermore, he argues he only became aware of the legislative issue the subject of the present requests in January 2018. On this point, however, I would note that, from the records before me, it appears this issue has been of concern to the applicant for a number of years. In fact, this Office has previously reviewed a decision of the Body on a request by the applicant a number of years ago for records I am satisfied relate to the subject matter of the requests in this case. 

Much of the applicant's submissions concerns his desire to hold the Body accountable for improper acts he believes he has identified. Of course, I accept that ensuring the openness and accountability of FOI bodies is one of the purposes of the FOI Act. While the applicant has not specifically requested that this Office investigate his allegations, he has also contended that these support his position regarding the Body-�s reliability in its submissions. However, as I have already stated, this Office cannot consider the merits of any such allegations. I am limited in this review to determining whether, within the meaning of section 15(1)(g), the requests at issue are frivolous or vexatious or form part of a pattern of manifestly unreasonable requests. 

The applicant also contends that the requests in this case were refused as part of an ongoing and longstanding "FOI cover up" within the Civil Service in relation to "scandals", unlawful behaviours and instructions regarding such unlawful behaviours (I understand this last point to refer to instructions of the Body regarding the implementation of the relevant legislation). 

In a letter to this Office dated 23 August 2018, the applicant also argued that the requests in this case relate "properly and ... [tangentially] to a large volume of [submissions]-� made by him regarding alleged wrongdoings in the Body spanning "[the] gamut of the Rule of Law; of Accounting Irregularities; of HR Practices; of Maladministration and of Corporate Governance" and in relation to which he expects to be vindicated in hearings before three different authorities. 

Furthermore, in correspondence with this Office, he has indicated an alignment in his considerations of the outcome of this review and investigations/hearings before two additional such authorities. He has also requested that this Office expedite the review in this case due to the "exceptional" nature of the Body-�s decision (a request to which I find no reason to assent in the circumstances). 

Conclusion

Having considered the matter carefully, I disagree with the applicant-�s characterisation of his requests. In my view, his use of FOI in this case may, in the circumstances, reasonably be considered to relate to his ongoing dispute with the Body, aspects of which are and/or have been the subject of examination by a number of other authorities. 

I accept that the applicant may be in a position to identify a particular public interest in seeking access to information relating to the relevant legislative provisions, such as the promotion of transparency and accountability in how the Body carries out is statutory functions. I also accept that the fact that requests may be driven by a particular agenda does not, of itself, make such requests vexatious. However, this does not mean that such requests cannot be deemed frivolous or vexatious. I am satisfied that it is entirely appropriate to have regard to the broader issue of the manner in which a requester has engaged with the public body to date on a particular matter. 

Having regard to those engagements, as outlined above, I am satisfied that the applicant's use of FOI in this case may reasonably be considered to comprise an element of his strategy in challenging actions of the Body and/or prolonging the wider, ongoing dispute between the parties. Indeed, when submitting his second request to the Body, the applicant stated he was doing so with a view to confirming that the Body-�s systems conformed with the law. It is important to note that the right of access is not intended to serve as an alternative appeal mechanism or as a vehicle for collateral attack against the merits of official action by public bodies generally. 

I am satisfied that the requests that are the subject of this review are directly related to the applicant's ongoing grievance with the Body. It seems to me that submitting FOI requests has become an integral part of the applicant's strategy in pursuing his dispute with the Body. Having considered the nature of the two requests at issue, against the background of the applicant's ongoing prolonged interaction with the Body, I find that the purpose of his request is directed at an objective unrelated to the right of access to records, i.e. it is being used tactically for the purpose of pursuing the dispute. In the circumstances, it is my view that a pattern of conduct exists relating to the use of FOI which suggests an abuse of the FOI process with no regard for the burden which the pursuit of his grievance has placed on the Body. 

Of further concern is a stated intention of the applicant to arrange for a journalist and a member of the Oireachtas to make identical requests to the Body, in order to demonstrate his contention that the Body could not refuse similar such requests made by other individuals on the same grounds as the requests at issue in this case. As I have outlined, where one requester is involved, refusal under section 15(1)(g) concerns the actions of that individual in the given circumstances. However, the Body could, of course, consider refusal under section 15(1)(g) where it appeared a request formed part of a pattern of manifestly unreasonable requests from different requesters who appeared to have made those requests acting in concert. In any event, I am satisfied that the applicant's stated intention in this regard further supports my understanding of the requests in this case as falling within the meaning of section 15(1)(g). 

Having regard to the particular factors outlined, I am satisfied that the applicant has in this case sought to employ FOI for the purpose of accomplishing an objective unrelated to the access process. I find, therefore, that the Body was justified in refusing to grant the requests at issue under section 15(1)(g) on the ground that they were vexatious.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Body-�s refusal of the applicant's requests under section 15(1)(g) on the ground that the requests are vexatious.

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