Whether UCC was justified in refusing the applicant's request for a range of records under section 15(1)(g) of the FOI Act

22 February 2019

Background

According to UCC, the applicant in this case appears to have a personal dispute with a member of its staff which began prior to his employment with it. UCC stated that the applicant has no connection with it and that she is neither a current nor a former student or member of staff. It stated that since 2013, the applicant has been submitting large volumes of correspondence to it, largely in relation to the staff member concerned. It stated that following the staff member's arrival at UCC, the applicant began directing correspondence to it in relation to that personal dispute.

On 3 September 2018, the applicant submitted seven separate applications to this Office for reviews of decisions taken by UCC on a number of her FOI requests. In six of those seven cases, UCC had refused the request under section 15(1)(g) which is concerned with the refusal of requests that are deemed to be frivolous or vexatious. During the course of those reviews, Ms Whelan of this Office informed the applicant of her view that UCC was justified in refusing the requests under section 15(1)(g) following which the applicant withdrew her applications for review on 28 November 2018.

In the meantime, on 24 September 2018 the applicant submitted an eighth application for review on the ground that UCC had not issued a decision on the request concerned. This review concerns that request. The request was made on 25 June 2018 and comprised 20 parts. It sought access to a range of information including, among other things, salary and employment details of named individuals over the course of a number of years, information concerning legal proceedings taken against UCC, details of travel expenses, details of UCC funding, class teaching timetables for certain posts, etc. 

On 23 July 2018 UCC informed the applicant that it was extending the deadline for its original decision due to the nature of the request. The applicant sought an internal review of the deemed refusal of her request on 3 September 2018. As she did not receive a response, she sought a review by this Office of the deemed refusal of her request on 24 September 2018. This Office accepted the application for review and asked UCC to inform the applicant of its effective position on the request. On 1 November 2018 UCC wrote to the applicant, wherein it provided some of the information sought and refused other parts of the requests under various grounds, including section 37(1) (personal information relating to third parties), section 15(1)(a) (records sought do not exist or cannot be found) and section 15(1)(c) (voluminous request). On 2 November 2018, the applicant stated that she wished our review to proceed.

Both the applicant and UCC were invited to make submissions during the course of the review and both parties did so. In its submission, UCC stated that it also wished to rely on section 15(1)(g) as a ground for refusing the relevant request as it considered that the request, when considered with the other requests the applicant made, falls well outside of what is reasonably expected of an FOI body. On 19 December 2018, Ms Whelan of this Office informed the applicant of UCC's position on the matter and afforded her an opportunity to respond. The applicant submitted a detailed response that same day.

Having regard to that correspondence, I consider that this review should now be finalised by way of a formal, binding decision. In conducting this review I have had regard to the correspondence between UCC and the applicant as described above, and to the correspondence between this Office and both UCC and the applicant on the matter.

Scope of Review

This review is solely concerned with whether the University was justified in its decision to refuse the applicant-™s request or any parts of it under the various sections of the Act cited, namely, sections 15(1)(a), 15(1)(c), 15(1)(g), and/or 37(1).

Preliminary Matter

Before I address the substantive issues arising, I wish to address a number of preliminary matters. Firstly, it is important to note that a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision. As such, I deem it appropriate to have regard to UCC's additional arguments for refusing the request as set out in its submission to this Office during the course of the review.

Secondly, I note that the applicant has raised some concerns about this Office's refusal to provide her with copies of UCC's submissions during he course of the review. As Ms Whelan has previously explained to the applicant, the policy of this Office is that submissions will not generally be exchanged between parties to a review but the parties should be notified of material issues arising for consideration. Material issues include matters such as applicable exemptions not previously raised, pertinent search details not previously disclosed to the applicant, and new court judgments which may have a bearing on the outcome of the review. Under section 45(6) of the FOI Act, the Commissioner has discretion to adopt such procedures as are appropriate in all the circumstances of a case.  In all circumstances, this Office aims to ensure that the approach adopted is fair, and seen to be fair, to all the parties concerned. 

Finally, in relation to the applicant's allegations of financial mismanagement by UCC and allegations against the relevant staff member of UCC with whom she has a grievance, it is important to note that this Office had no role in examining the administrative actions of UCC or its staff in the performance of their functions.

Analysis and Findings

Section 15(1)(g)
Given the arguments presented by UCC in support of its reliance on section 15(1)(g) for refusing the request, I have decided to consider the applicability of that section in the first instance. While it is not clear to me why UCC initially decided to treat the request at issue differently to the other six requests it refused under section 15(1)(g), I am satisfied that the fact that it made initial efforts to answer the request does not preclude it from now seeking to rely on section 15(1)(g).

The section provides for the refusal of a request where the FOI body considers that the request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests from the same requester. The section identifies three characteristics of a request which may lead to a decision to refuse the request; namely that the request is frivolous, vexatious, or forms part of a pattern of manifestly unreasonable requests. While these are three separate characteristics, they may also 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 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, UCC outlined its dealings with the applicant dating back to 2013. As outlined above, it stated that the applicant has no connection with it and that she is neither a current nor a former student or member of staff. It stated that since 2013, the applicant has been submitting large volumes of correspondence to it, largely in relation to an apparent personal dispute she has with a member of its staff which began prior to his employment with UCC and that following the staff member's arrival at UCC, she began directing correspondence to it in relation to that personal dispute.

UCC stated that the applicant first made an FOI request in February 2014 seeking records relating to herself held by UCC. It stated that since this date, it has received and continues to receive a constant barrage of email correspondence from the applicant on various topics but generally in relation to the staff member in question. It stated that the high frequency of this correspondence is evident from the documentation provided previously to this Office in relation to the six cases that the applicant subsequently withdrew. It stated that embedded within that correspondence were extensive multi-part FOI requests.

UCC further stated that despite attempts by its Office of Corporate & Legal Affairs and its President's Office to respond to the applicant's early correspondence and to point out that the issues she raised are completely unrelated to UCC, the flow of emails continued unabated, so much so that UCC decided to direct her incoming email to a dedicated "quarantined" monitored email inbox. It stated that presumably in an effort to circumvent this administrative measure, the applicant has changed her corresponding email address periodically.

UCC argued that it has processed the applicant's large volume of requests in accordance with its statutory obligations and that it has invested considerable resources in searching for potentially relevant records related to some of these wide-ranging and frequent requests. It stated that at the date of its submission, the applicant submitted 11 separate requests to it, including the six she submitted over a short period of time in May and June 2018 that were the subject of subsequent reviews by this Office and which were subsequently withdrawn by the applicant. It reiterated that those six requests, comprising 106 separate parts/questions, were refused under section 15(1)(g). It stated that it responded to one of the requests she submitted in May 2018 in full as the request was primarily for records relating to the applicant. It argued that the request that is the subject of this review forms part of a pattern of manifestly unreasonable requests from the same requester, hence its view that section 15(1)(g) applies.

The essence of the applicant's argument is that she made the FOI requests for the purposes of exposing abuse of public funds, and she made a number of allegations of financial mismanagement against UCC and allegations in relation to the staff member about whom she made a number of FOI requests. 

Analysis and Conclusion
It is not in dispute that the applicant has a serious grievance with a member of staff of UCC. It seems to me that UCC has made reasonable efforts to explain to the applicant why it does not consider this grievance to be a matter for it to address. Essentially, UCC is of the view that the requests submitted by the applicant, including the request that is the subject of this review, form part of her pursuit of that long-running grievance. It considers that there is evidence of a clear and repeated pattern of conduct and communications relating to the matter which has passed the stage of reasonableness and which the University now considers to be vexatious. 

I fully 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. Nor does the fact that a requester may be in a position to identify a particular public interest in the release of information 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. As I have stated above, in Kelly v the Information Commissioner [2014] IEHC 479, O'Malley J. 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". 

It is important to state that 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. It appears that despite UCC clearly outlining its position to the applicant, she continues to pursue her grievance through any means possible. I am satisfied that the applicant's requests are directly related to her ongoing grievance relating to a personal grievance she has with a staff member of UCC. It seems to me that her use of the FOI process has become an integral part of her 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 UCC, I find that the purpose of her request is directed at an objective unrelated to the right of access to records, i.e. it is being used for its nuisance value and to draw attention to her private grievance. 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 her grievance has placed on UCC. Accordingly, I am satisfied that UCC was justified in deciding to refuse the request at issue under section 15(1)(g) on the ground that it was vexatious. 

Having found section 15(1)(g) to apply, I do not consider it necessary to examine the other exemptions cited in this case.

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of UCC to refuse the applicant's request 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