Whether the Council was justified in refusing access to records concerning the expenditure of a development bond on works in a named housing development under section 15(1)(g) of the FOI Act on the ground that the request was frivolous and vexatious or that it formed 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

15 May 2020

Background

The applicant in this case is a resident of a private housing development in County Clare. The Council took enforcement action against the developer for failing to complete the development to a satisfactory standard. The matter eventually ended up in the Courts and a settlement was reached, which included the Council calling in outstanding development bonds and the developer transferring a number of undeveloped sites to the Council.  It is the issue of these bonds that is the subject matter of this review.

In a request to the Council dated 27 September 2019, the applicant sought access to all records, including minutes of meetings held, reports and emails with regard to the allocation/decision on the expenditure of the Bond/Cash Value claimed by the Council on 6 November 2012 from the developer in respect of the housing development. On 24 October 2019, the Council refused the request under section 15(1)(g) of the FOI Act, which allows for the refusal of frivolous or vexatious requests or requests that form 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.

The applicant sought an internal review of that decision, following which the Council affirmed its original decision. On 27 January 2020, the applicant sought a review by this Office of the Council’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 submissions made by the Council and the applicant on the matter.

Scope of Review

This review is concerned solely with whether the Council was justified in refusing the applicant’s request under section 15(1)(g) on the basis that the request was frivolous, vexatious, or formed 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.

Analysis and Findings - Section 15(1)(g)

As I have outlined above, section 15(1)(g) provides that an FOI body may refuse to grant a request if it considers that the request is frivolous or vexatious or 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. The section identifies three characteristics of a request that may lead to a decision to refuse a request; they are that the request is frivolous, is vexatious, or forms part of a pattern of manifestly unreasonable requests.

Any one of the three separate characteristics may, of itself, provide the basis for a refusal of a request. It is not necessary, for example, for the request to be both frivolous ‘and’ vexatious. Nevertheless, while they are three separate characteristics, they may also overlap. Therefore, what is frivolous may also be vexatious, and what is frivolous and/or vexatious may 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 the FOI process. In considering the application of section 15(1)(g), we may consider the context in which the request was made.  A request may be considered in the context of other requests made to the FOI body and in the context of the requester's other dealings with the FOI body concerned and with our Office. The outcome or cumulative effect of the request is also a relevant consideration

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 or to break or burden the system?

This Office also considers the list of non-exhaustive factors in question to be equally relevant in determining whether or not there is evidence of a pattern of manifestly unreasonable requests.

In its detailed submissions to this Office, the Council stated that it had completed a schedule of remedial works to the housing development at issue using the bond monies available.  Some residents were disappointed that more landscaping works were not carried out as part of the works but the Taking in Charge Team had to prioritise other work, as the estate required a lot of work.  The Council said it engaged extensively with the applicant through ongoing correspondence during the court case and the completion of the programme of works.  In early 2019, the Housing Section of the Council then progressed plans to construct 3/4 social houses within this development and it brought machinery onto the site to carry out site investigation works.  The Council believe this triggered a negative reaction from some of the residents including the applicant in this case.

The Council said it received 37 FOI requests relating to the development, 13 from the applicant and 24 from a second requester. Eight of the applicant’s requests concerned the Planning Section while the remaining five concerned the Housing Section. It said it received 51 planning related requests in total in 2019 of which 31 of these related to the housing development at issue. It contrasted this by stating that in 2017 and 2018 the Planning Department dealt with a total of 67 FOI requests. Of those 67 requests, only two related to the taking in charge of developments and were in respect of two different developments.  In 2019, of the 51 requests dealt with in Planning, 31 related to the Taking in Charge Section and all of these related to just one development, even though that Section deals with some 250 developments at any one time.  The Council said this level of FOI requests in this area is without precedent.

The Council said it decided to refuse the applicant’s request under section 15(1)(g) as it considered the requests to be vexatious and to form a pattern of manifestly unreasonable requests. It made the following points:

• It considered the requests to be of a repetitive and voluminous nature, and unreasonably persistent,
• It considered that the sole purpose of the high number of FOI requests was to gather information so the applicant and the other requester could challenge the Council’s plans to construct social housing at the location,
• It said it had engaged fully with the applicant over the years outside of the FOI process and has always provided updates when available
• It said the applicant also requested a significant amount of information under the Access to Information on the Environment (AIE) Regulations 2007 in September 2019,
• It said the applicant submitted a 74 page submission on the Part 8 planning application objecting to the development, and
• It added that the Planning Department does not have the resources to deal with 29 requests (two of the 31 were subsequently transferred to another area) that were received in relation to the development in a ten-week period.

Following receipt of the Council’s submissions, Ms Greenalgh of this Office informed the applicant of the Council’s position on the matter and invited her to respond to points made. On 31 March 2020, the applicant made a submission in which she said she made a number of very different requests to the Council over a 9-10 month period comprising both planning and housing requests. She said a number of the requests submitted were not granted by the Council or were withdrawn by her when it was pointed out by the Council that they were potentially voluminous based on the original request. She argued that she had therefore endeavoured to be as cooperative as possible with any requests, understanding at all times that some requests can be cumbersome for Council officials, if not specific.

The applicant argued that the FOI requests submitted were neither repetitive nor voluminous in nature and that she made every effort to amend requests to ensure that they were neither of the above. She said she also amended some requests when advised to do so by the Council to minimise the amount of work and information seeking that the Council had to undertake, as initially requests may have been too general in nature. She suggested that the Council appeared to have adopted a different approach to replying to her in good faith most notably after August 2019 and seemed to have taken offence at her submission on the Part VII planning application. She said she was statutorily entitled to make a submission under planning law and she failed to see how the Part VII planning process and the statutory submission process for same has any relevance to the FOI process.

The applicant further argued that she submitted the requests in good faith under the FOI process in place with the objective of obtaining particular, specific information that she considers should be in the public domain. She said she has ongoing, unsatisfactory correspondence with the Council

on the matter for approximately 16 years and that, the Council have still not addressed the substantial unfinished items in the housing estate. She said the request under review relates to the bond monies for the completion of the estate and had nothing to do with the issue of social housing. Indeed, she argued that the process for the construction of the social housing and the submission period for same had closed in August 2019, and that she submitted her FOI request after the social housing matter had concluded. She argued, in any event, that the Council are not permitted to have regard to any reasons she might have for making the request.

In response to the Council’s reference to requests she made under the AIE Regulations, the applicant said that request related to a separate matter and was to do with a malfunctioning Wastewater Treatment Plant in the area and related specifically to Environmental concerns about the Wastewater Treatment Plant.

The request that is the subject of this review was one of six requests the applicant made to the Council in or around the same time at the end of September 2019 relating to the housing development. The Council refused all six requests under section 15(1)(g), the request at issue being refused on 24 October 2019. Prior to that, the applicant had made six other requests relating to the development, all on the same date in March 2019. The Council granted three of the six requests submitted in March 2019. One was refused on the ground that the information sought was confidential. A second was refused on the ground that no relevant records could be found, while a third was refused on the ground that granting the request would cause a substantial and unreasonable interference with or disruption of the Council’s work.

On its face, it appears that the applicant had no reason to believe, when she submitted her second set of requests, that the Council might deem them to be of a type that should be refused under section 15(1)(g). Indeed, it had processed the six previous requests she made without relying on that section to refuse any of those requests.

It is important to note, however, that a second requester was submitting requests to the Council relating to the housing development during the same period. On 15 August 2019, the second requestor submitted seven requests. The Council granted four of the requests, in whole or in part, and deemed the three remaining requests to be invalid.

However, on 14 October 2019,the second requestor submitted a further 17 requests relating to the housing development, at a time when the Council had not yet issued a decision on the applicant’s second set of requests. I understand that all 17 requests were subsequently refused under S15(1)(g). 

During the course of the review, the Council stated that while it took account of the requests made by both requesters when deciding to refuse the request at issue under section 15(1)(g) as it was in no doubt that the requesters were acting in concert, it also considered the applicant’s requests individually. It expressed its views as to the motives of the applicant for making the requests. Among other things, it said it considered that the sole purpose of the high number of FOI requests was to gather information to allow for a challenge of the Council’s plans to construct social housing at the location. On the other hand, the applicant argued that the Council was not entitled to have regard to any motive she may have had for making the requests.

Under section 13(4) of the Act, the actual or perceived reasons for a request must generally be disregarded in deciding whether to grant or refuse an access request. However, certain provisions of the Act implicitly render the motives for a request of relevance. This Office accepts that section 15(1)(g) is one such provision. Indeed, 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".

As I have indicated above, among the factors, this Office considers relevant in assessing whether requests may be categorised as frivolous or vexatious or as forming part of a pattern of manifestly unreasonable requests is the purpose of the requests. The examples I identified included whether the requests have been made for their nuisance value, whether they were made without reasonable or legitimate grounds, or whether they were intended to accomplish some objective unrelated to the access process.

Taking the applicant’s usage of the FOI process in isolation, it seems to me that no such issues arise in this case. In my view, it is entirely reasonable and legitimate that an individual opposed to a proposed social housing development should wish to access relevant information held by the relevant local authority in order to put his/her best case forward. Similarly, I see no issue with a resident who has concerns about the manner in which a local authority has dealt with taking in charge issues using FOI to access records that would allow for more informed conclusions to be drawn as to the appropriateness of the authority’s actions.

It is important to note that in performing any function under the Act, public bodies must have regard to, among other things, the need to inform scrutiny, discussion, comment and review by the public of the activities of public bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of public bodies.

Moving on to the other arguments presented by the Council and again taking the applicant’s usage of the FOI process in isolation, I do not share the Council’s views as to the nature and categorisation of that usage. While I accept that the requests all relate to the specific housing development, they are not, in my view, repetitive to the extent that they could be regarded as vexatious. In so far as they may be voluminous, the Council had the option of considering whether they should be refused under section 15(1)(c). Indeed, I note that it refused one of the earlier six requests from the applicant on those grounds but processed the remaining five.

On the matter of the Council’s reliance on the fact that the applicant submitted requests in September 2019 for a significant amount of information under the Access to Information on the Environment (AIE) Regulations 2007 and that she submitted a 74 page submission on the Part 8 planning application objecting to the development, I accept that the Council is not confined to considering only the applicant’s behaviour in terms of her use of FOI. A request may be considered in the context of other requests made to the body and also in the context of the requester's other dealings with the body.

In this case, the applicant argued that the AIE request related to a separate environmental matter and that she was fully entitled to make her submission on the Part 8 planning application. It does not seem to me that the applicant took these actions with some other motive in mind such as burdening the Council to the extent that it might change its course of action in relation to decisions affecting the particular housing development.

In all of the circumstances, taking the applicant’s engagements with the Council in isolation, I find that the Council was not justified in refusing the request on the ground that it was frivolous or vexatious or formed part of a pattern of manifestly unreasonable requests made by her.

However, the question of whether the request forms part of a pattern of manifestly unreasonable requests from different requesters who appear to have made the requests acting in concert is altogether more difficult to determine in this case.

I have sympathy for the Council’s concerns as to the extent of the burden the totality of the requests has placed on its resources, particularly within the Planning Department. The submission of 31 planning related requests by two applicants in relation to a single housing development in the space of a relatively short space of time is quite substantial. While the burden on the Council, of itself, is not sufficient to find that the request forms part of a pattern or unreasonable requests, the number of requests made is certainly a factor worthy of consideration. Furthermore, it the parties were, indeed, acting in concert, I would also have considerable sympathy for the Council’s argument as to the repetitive and overlapping nature of the requests

On the question of whether the two parties were acting in concert, the Council argued that the submission of the requests in question by the two parties, and the manner in which they were submitted, highlights a unique pattern that shows that they were in discussions with each other. It argued that the applicant’s second batch of requests appear to have been as a result of responses issued to the second requester on three requests in mid-September 2019.

The Council further argued that the housing development in question is a relatively small rural development which came together in opposition to the Council’s plans to submit planning permission for 3/4 social houses in that development. It suggested that it is more than a co-incidence that 37 requests were submitted by just two individuals without either of them being aware of what the other was doing.

Having examined the 37 requests submitted, as described by the Council, I fully accept that a number of the requests can reasonably be described as repetitive and overlapping. Indeed, the information sought in one of the requests made by the second requester on 14 October 2019 is almost identical to the information sought in the request that is the subject of this review.

This Office afforded the applicant an opportunity to respond to the Council’s assertions the she was acting in concert with the second requester. In response, she argued that any such similarities between the requests are coincidental. She argued that that it is most likely because they too have had enough of being ignored and misinformed by the Council with regard to the non-completion to a satisfactory standard of the housing estate and have decided to finally take action by contacting the Council. She suggested that if the wording of the requests is similar, it may be because the overriding problem is the housing estate was not finished to a satisfactory standard and were taken in charge by the Council without being fully completed.

The applicant added that she had been dealing with a local Councillor who was assisting her with obtaining information and that the Councillor suggested that she submit the request at issue. She said she never sought an internal review of any of the other decisions but did so with this one because she could not afford to do so and she picked this one as being the most important as the estate is still not finished and she wants to know where the money has gone.

While the Council’s conclusion that the applicant was acting in concert with the second requester is understandable, given the nature and number of requests submitted in close proximity, I am not persuaded that it has provided sufficient evidence to suggest, on balance, that was the case. As the Council itself acknowledged, the housing development is small. The completion of the development to the highest possible standards is, understandably, a matter of great concern to the local residents and as such, it would not be unexpected for affected local residents to avail of their rights under FOI to inform themselves of all relevant issues in their ongoing efforts to seek the completion of their estate.

In all of the circumstances, I find that the Council has not provided sufficient evidence to justify its decision to refuse the request on the ground that it formed part of a pattern of manifestly unreasonable requests from different requesters who appear to have made the requests acting in concert.

In conclusion, therefore, I find that the Council has not justified its refusal of the request under section 15(1)(g). I should add that in making this finding, I have not considered the second requester’s usage of the FOI Process, apart from considering whether the parties were acting in concert. For the purpose of this review, it was not necessary for me to consider whether any or all of the second requester’s requests were frivolous, vexatious, or formed part of a pattern of manifestly unreasonable requests.

I would add that I would expect requesters to have appropriate regard to the burden multiple requests place on small administrative areas of the Council and the impact processing such multiple requests might have on their other statutory functions. While the FOI Act demands that public bodies meet very high standards in dealing with requests, the Act also assumes reasonable behaviour on the part of requesters.

I would also add that it is open to the Council to examine the information it holds on the housing development in question to determine what further information it might be in a position to make publicly available, thereby negating the need of residents to submit further requests. It might also be useful for the Council and the residents to meet to identify any outstanding gaps in the information available that might allow the residents to understand why the Council acted as it did in relation to the housing development. It is important to note however, that the appropriateness, or otherwise, of such actions, are not matters that fall for review by this Office.

It is also important to note that my finding that the Council was not justified in refusing the request at issue under section 15(1)(g) does not mean that it cannot refuse any future requests from the applicant relating to the development on those grounds. The FOI process should not be abused and should not be used for purposes other than that for which it was intended, namely to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies. It should not, for example, be used as a particular mechanism for pursuing previously determined grievances with a view to attempting to compel a public body to revisit its previous decisions.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Council to refuse the applicant's request under section 15(1)(g) of the FOI Act. I direct that the Council undertake a fresh decision-making process on the applicant's request, in accordance with its obligations under 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