Whether the Council was justified in refusing the applicant's request for information and a statement of reasons relating to the enforcement of markings and parking notices on Council owned land adjoining the applicant's property under section 15(1)(g) of the FOI Act.

20/02/2019

Background

The applicant in this case is the owner of a property adjoining land owned by the Council. It appears that this review has its background in a long running dispute the applicant has with the Council relating to the enforcement of markings and parking notices on this land. It appears that at some point in 1993, Dublin Corporation had made some plans for the disposal of this land to the applicant, however this did not come about, for reasons unknown.
According to the Council, the ownership of the area in question was transferred from Dublin Corporation to the Council under the provisions of the Local Government (Dublin) Act 1993, which came into effect in 1997. The area in question has been a matter of contention between the applicant and the Council since this time due to what the applicant has called the inappropriate use of this land, causing disruption to his home and the purported failure of the Council to enforce parking notices in the area. The matter was considered by the Circuit Court in 2015 during which time a Circuit Court order dated 23 February 2015 was handed down which directed the Council to complete works on the area, which the Council maintains it has. The remaining proceedings were struck out with no further order. 

It appears that the applicant fundamentally disagrees that the Council has complied with the Circuit Court order and indeed in his submission to this Office, suggested that there was no Court order in respect of these matters. The applicant subsequently complained to the Council on a number of occasions, alleging breaches of the Court order, to which the Council responded to advise the applicant of its position that it had complied with the order. 
Following numerous complaints, in a letter dated 5 September 2016, the Council formally wrote to the applicant to advise him that, in light of the 80 or so emails the Council had received from the applicant in relation to the car parking area, it would not respond to any further correspondence in respect of the matters that had been dealt with in the Circuit Court order. The Council has adhered to this position since that time and up to the current review, save for a letter to the applicant's son, dated 13 November 2017, which again reiterates the Council's position and makes reference to hundreds of emails received in relation to these matters. Subsequently, at a Council meeting on 2 May 2018 in response to a question put by a Councilllor, the Council erroneously stated that the issues arising at the location in question were considered, and an order was made, by the High Court, as opposed to the Circuit Court.
That error appears to have triggered the applicant's FOI request. On 3 May 2018, he submitted a seven-part request to the Council for details of the names of Council officials responsible for the response, records relating to the supposed involvement of the High Court, the court order (presumably of the Circuit Court) previously referenced by the Council, records and information relating to that Court Order, and records relating to emails sent from an email address the applicant uses concerning the location. He also sought a statement of reasons as to why the Property Section of the Council would not give consent to An Garda Síochána to enforce parking markings in the area. 

As the Council did not issue a decision within the four week period as prescribed in the FOI Act, the applicant sought an internal review of the deemed refusal of his request. On 26 June, the applicant sought a review of the matter by this Office as he did not receive an internal review decision. Following correspondence with this Office, the Council wrote to the applicant on 11 July 2018, wherein it informed him that it was refusing his request under section 15(1)(g) of the FOI Act. On 13 July 2018 the applicant informed this Office that he wished a review of the matter to proceed.
Both the applicant and the Council were invited to make submissions during the course of the review. Both parties made submissions. Having regard to that correspondence, I consider that the review should now be finalised by way of a formal, binding decision. In conducting this review I have had regard to the correspondence between the Council and the applicant as set out above and to correspondence between this office and both the applicant and the Council on the matter. 

Scope of Review

This review is solely concerned with whether the Council was justified in its decision to refuse the applicant's request for information and a statement of reasons relating to the enforcement of markings and parking notices on Council owned land adjoining the applicant's property under section 15(1)(g) of the FOI Act.


Analysis and Findings

Section 15(1)(g) of the FOI Act provides that an FOI body may refuse a request where it considers that the request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests from the same requester. 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, including, but not limited to;
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?
It is important to note that this list of factors is non-exhaustive and that there is no requirement for all of the factors to apply for a request to be considered frivolous or vexatious. It is also important to note that this Office is satisfied that it is entitled, by virtue of section 13(4) of the FOI Act, to take into account the motive of a requester when considering whether a request is frivolous or vexatious. In the case of Kelly v the Information Commissioner [2014] IEHC 479, O'Malley J. stated that in determining whether a particular application should be described as vexatious, the Information Commissioner is entitled by statute to use his discretion. She stated that "[t]here is no obligation on the Commissioner to prove the applicant's state of mind, and inferences may be drawn on a common sense basis from a pattern of conduct". 

In its submission of 30 July 2018, the Council stated that the area in question has remained a matter of contention between the applicant and the Council since the area was transferred to the Council in 1997, culminating in the initiation of Circuit Court civil proceedings. It stated that the matter was considered and resolved by Circuit Court Order on 23 February 2015 and that it has complied fully with the terms of the Order. It stated that in spite of the Order, the applicant persisted with his complaints, alleging breaches of the Order. It stated that it took the decision not to respond to any further correspondence from the applicant in respect of parking matters in the car parking area in question or any other matters that were previously responded to or addressed during the Circuit Court case in relation to the car park and that it informed the applicant of that fact by letter dated 5 September 2016.

The Council stated that it took that course of action because it viewed the repetitive and voluminous nature of the complaints being forwarded to it following the conclusion of the Court proceedings as being unreasonably persistent. It referred to hundreds of emails and numerous incidents of unsolicited text messages, phone calls and voice mails from the applicant's family to the mobile phones of two members of the Council's senior management team during anti-social times at weekends and outside business hours during the working week. It added that the applicant and his son had also brought two complaints in relation to these matters to the Office of the Ombudsman, both of which were dealt with together and closed as not upheld.  

The Council stated that it again wrote to the applicant on 13 November 2017 to reiterate that it considered the matter closed and that it would not respond to any further correspondence from the applicant in respect of parking matters in the car parking area in question or any other matters that were previously responded to or addressed during the Circuit Court case in relation to the car park. It added that it took the decision to refuse the applicant's FOI request under section 15(1)(g) as it views the request as an attempt to revisit an issue that has previously been addressed.

During the course of the review, Ms Whelan of this Office informed the applicant of the Council's position on the matter and invited him to submit a further submission if he wished to do so. On 2 August 2018, the applicant stated that the reason for the FOI request was to establish responsibility for the statement that the Council was in possession of a High Court order so that a complaint can be made to the Standards in Public Office Commission against them. 

He also alleged that the was no Circuit Court Order because the President of the Court refused to hear the case but rather instructed the Council to leave the Court area and meet with the prosecution and resolve the issue. He stated that the resulting layout before his home is the result of that and was duly installed. In essence, he argued that the installation was legally flawed with the effect that An Garda Síochána cannot police the area. He alleged that, as a result, incidents occur that cause nuisance and disruption to his household, that they are reported to the Council, and that this will remain his position until such time as measures are taken to rectify the situation. The applicant also alleged that the Courts Service is adamant that no such Circuit Court Order exists.

In a subsequent submission to this Office, the Council stated that the reference made to High Court proceedings in the reply that issued on 2 May 2018 in response to the Councillor's question regarding the area in question was made in error. It stated that the reply should have referenced Circuit Court proceedings. It also provided this Office with a copy of the Circuit Court Order dated 23 February 2015. It stated that the Order 007793/07 is a bona fide Order of the Circuit Court and that the applicant can obtain a copy of the Order by contacting the Courts Service directly.

The Council again reiterated that it has fully complied with the terms of the Court Order whereby it was required to resurface and set out the parking area as per specified drawings and to erect a "Parking for Residents Only" sign and that the proceedings were struck out with no further order.

Conclusion

It is clear that the applicant has significant concerns about the enforcement of markings and parking notices on land in question. It is important to note that this Office has no role in examining the administrative actions of the Council in relation to the manner in which it dealt with issues arising relating to the area in question. As outlined above, this review is concerned solely with whether the Council was justified in refusing the FOI request under section 15(1)(g). 
It is not in dispute that the applicant has been pursuing his grievance with the Council since as long ago as 1997. Neither has the applicant disputed the Council's allegations that he and/or his family have submitted hundreds of emails to the Council and sent or made numerous unsolicited text messages, phone calls and voice mails to the mobile phones of two members of the Council's senior management team outside business hours. He has also confirmed that he has made complaints to the Office of the Ombudsman and I understand from his latest correspondence to this Office that he has not accepted the Ombudsman's findings in respect of those complaints.

The Council has made a point of stressing that it has given full consideration to the subject of the applicant's grievance and that it has made its position on the matter clear on a number of occasions. It argued that it complied fully with the Circuit Court Order, the purpose of which was to settle the issue. The applicant has argued that there is no such Court Order in existence but he has provided no evidence to support that allegation. On the other hand, the Council has provided this Office with a copy of the Order and has also referred to the fact that it is open to the applicant to obtain a copy of the Order by contacting the Courts Service directly. 

It seems to me that the applicant's arguments relating to the Court Order are inconsistent. Indeed, I note that in an email of 27 June 2017 to the Office of the Ombudsman, a copy of which he provided to this Office, he argued that "[t]here are no bye laws to enforce the court order making it an empty vessel". In that same email, he makes reference to "[l]egal advice given in the council chamber the court order cannot be used as a vehicle for enforcement as it has no authority" and he states that "the judge in the case expected the gardai to enforce the order as the council stated that they were not a police force". 
In essence, the Council's position is that the FOI request submitted by the applicant that is the subject of this review is yet another attempt by the applicant to pursue his long-running ongoing grievance. I should say that the fact that an individual is pursuing a grievance and makes a request for access to records in order to pursue that grievance does not, of itself, mean that the request must be considered to be frivolous or vexatious. Nevertheless, having regard to the comments of O'Malley J. in Kelly v the Information Commissioner [2014] IEHC 479 as outlined above, 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. 

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. I note in correspondence going back a number of years between the applicant and the Council, the Council has advised the applicant repeatedly of its position that it has complied the Circuit Court order and that it is open to him to obtain his own legal advice and challenge the terms of the order. It appears that despite the repeated attempts of the Council to explain its position to the applicant, he continues to pursue his grievance in relation to the land in question through any means possible. 

I should add that I have also considered the nature of the request itself. The applicant sought access to information relating to supposed involvement of the High Court, including a copy of such a High Court Order, in the full knowledge that the reference in the Council's reply at the Council meeting in question should have been to the Circuit Court. I cannot accept that the applicant genuinely believed that the reference to the High Court was anything other than an error on the part of the Council. It seems to me that his request was not a genuine attempt to obtain access to records, as is the purpose of the FOI Act, as the request included records that he clearly knew not to exist.

I am satisfied that the applicant's request is directly related to his ongoing grievance relating to the use of land adjacent to his property and owned by the Council and that his FOI request formed part of his strategy to pursue that grievance. Having considered the nature of the request at issue, against the background of the applicant's ongoing prolonged interaction with the Council, 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 which suggests an abuse of the FOI process with no regard for the burden which the pursuit of his grievance has placed on the Council. Accordingly, I am satisfied that the Council was justified in deciding to refuse the request at issue under section 15(1)(g) on the ground that it was vexatious. 


Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Council to refuse the applicant's request for information and a statement of reasons relating to the enforcement of markings and parking notices on Council owned land adjoining the applicant's property under section 15(1)(g) 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. 

Stephen Rafferty
Senior Investigator