Whether the Department was justified in refusing the applicant’s request for access to further records pertaining to documents that had previously been released to him under section 15(1)(g) of the FOI Act on the ground that the request was frivolous or vexatious or that it formed part of a pattern of manifestly unreasonable requests

19 July 2019

Background

On 30 September 2018 the applicant submitted a request to the Department seeking access to information and records arising from responses and records he had received on foot of an earlier request.

On 1 November 2018 the Department refused the request under section 15(1)(g) of the FOI Act on the ground that there were no legitimate grounds for the request and that it was not made in good faith. The applicant sought an internal review of that decision on 25 November 2018, following which the Department affirmed its decision to refuse the request under section 15(1)(g). It also provided some information relating to certain points the applicant had made in his correspondence.

On 13 March 2019 the applicant sought a review by this Office of the Department’s decision. I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the correspondence between the Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant on the matter.

Scope

This review is solely concerned with whether the Department was justified in its decision to refuse the applicant’s request as set out in his letter of 30 September 2018 under section 15(1)(g) of the FOI Act.

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 Commissioner has previously set out a number of non-exhaustive factors considered 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? Alternatively, are the requests repetitive in character or are they used to revisit an issue that has previously been addressed?
• 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 by 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?

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.

In its original decision, the Department argued that there were no legitimate grounds for the request. It listed 11 previous requests the applicant had made from 2003 to 2018 and it stated that all records deemed capable of release in each of those requests was made available to him and any record not capable of being released was made known to him and the reasons for refusal were given.

The Department referred in particular to the request that the applicant made immediately before the request that is the subject of this review (Department request reference 156/353/2018). In that request the applicant sought access to records relating, among other things, to matters dating back to 2005.

 The Department stated that it had explained in its decision on that request that records were made available on foot of the previous requests made. It stated that as all of the records capable of being released held on all Department files had been made available to the applicant, it determined that the latest request was not one genuinely seeking records and that the request was not made in good faith.

In its submission to this Office, the Department stated that the request that is the subject of this review is intrinsically linked to request 156/353/2018. It argued that the applicant is not requesting records held by the Department but rather is using FOI as a vehicle for expressing dissatisfaction regarding other matters that are being dealt with through other channels.

On the matter of the number of requests the applicant has made to date, the Department, in its submission to this Office stated that the volume and nature of the applicant’s requests are “clearly and demonstrably not in the spirit of FOI”.  It noted that dealing with those requests has resulted in an immeasurable cost in lost time for the relevant section.

However, the Department went on to say that out of fairness to the applicant, it did not take account of the 10 previous requests made as the request before the two more recent requests was made in 2016 and related to a separate matter.

On the matter of the two request the Department considers to be intrinsically linked, it stated that it identified 22 records as coming within the scope of request 156/353/2018 which, as I have outlined above, included a request for all records relating to matters dating back to 2005. It refused access to 13 those records on the ground that they were already available to the applicant (primarily through previous requests) and it granted access, in whole or in part, to nine records. Among the records released were records identified as numbers 12, 15 and 22 on the schedule of records the Department prepared when processing that request.

In his application for an internal review of that decision, the applicant raised a number of queries about records 12, 15 and 22. The Department addressed those queries in its internal review decision.

Subsequently, the applicant submitted the request that is the subject of this review. Among other things, he requested the Department to take actions that are not relevant to the FOI process, such as the deletion of information under the General Data Protection Regulations and a request that his correspondence to be forwarded to the Minister. He also essentially repeated his queries in relation to records 12 and 22. Notably, however, he also identified specific records related to records 12 and 22 to which he required access.

I agree with the Department that the two requests are intrinsically linked. It seems to me, however, that the overlapping aspects of the requests essentially stem from a lack of understanding on the part of the applicant of the precise purpose and function of the FOI regime and of its limitations.

As I have set out above, his requests include calls for action that fall outside the scope of the FOI process. He also appears to be under the impression that the Act entitles him to demand answers from the Department to any questions he has about his interactions with it.

The applicant should note that this Office has no role in the investigation of complaints regarding the manner in which public bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by those bodies.

Furthermore, while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought. 

The Department’s frustration with the nature of the request made is, in my view, understandable. It seems to have taken the view that it has released all relevant records it holds that are capable of release and that further requests will serve no purpose.

Nevertheless, as I have explained above, the applicant identified specific records in his most recent request to which he requires access. It may well be the case that no such records exist, given that the Department has already stated that all relevant records were considered for release in request 156/353/2018. If that is the case, it seems to me that it was open to the Department to refuse the request under section 15(1)(a). That provision allows for the refusal of a request where the records sought do not exist or cannot be found.

In all of the circumstances, I find it difficult to accept that the applicant’s most recent request can be described as frivolous or vexatious, based on its close relationship with request 156/353/2018. In forming this view, I am conscious that the Department expressly stated that it did not take account of the 10 previous requests made.

It is entirely possible that the applicant is attempting to use FOI as a mechanism for obtaining information held by the Department concerning matters he is being dealt with through other channels. However, of itself, this does not mean that his requests are frivolous or vexatious. In my view, none of the factors I have identified above as relevant in assessing whether a request may be categorised as frivolous or vexatious or as forming part of a pattern of manifestly unreasonable requests arise in this case.

In conclusion, therefore, while I accept that there has been significant engagement between the Department and the applicant over the past sixteen years, I do not consider that there is sufficient evidence before me to support a view that the applicant’s request in this case is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests. I do not agree that the applicant’s request was made without legitimate grounds or that it was not made in good faith.  I find, therefore, that the Department was not justified in refusing the request under section 15(1)(g).

In my view, the most appropriate course of action to take in this case is to annul the decision of the Department and to direct it undertake a fresh decision-making process in respect of the request. In doing so, however, I believe it would be to the benefit of both parties to agree, in the first instance, on the precise nature of the records sought apart from those already released and taking into account the limits of the FOI process as I have described above. As such, I recommend that the Department liaise with the applicant on this point before considering the request afresh.

Furthermore, given the Department’s view that all records have been provided to the applicant, I wish to note that while section 15(1)(i) provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester where the records are available to the requester concerned, this is confined to circumstances where the records sought have already been released and does not extend to records that were considered for release but not released or only partially released.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Department in this case.  I direct the Department to conduct a new 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 Investigatory