Whether the Department was justified in refusing access to certain records contained in a Rural Environment Protection Scheme (REPS) file under section 15(1)(g) of the Act on the ground that the applicant-™s request was vexatious and formed part of a pattern of manifestly unreasonable requests

21 November 2022

Background

This case has its background in a previous FOI request the applicant made to the Department. In that previous request, in August 2015, the applicant sought access to a file relating to his participation in the Rural Environment Protection Scheme (REPS) and a copy of the REPS Inspection implementing directions. The Department part-granted the request. It released the REPS Inspection implementing directions and a copy of the relevant REPS file with the exception of six records that it withheld under section 37(1) of the Act and one record that it withheld under section 31(1)(a).

On 8 May 2018, the applicant made a request to the Department for the withheld records. It refused that request, again under sections 37(1) and 31(1)(a). Following a request for an internal review, the Department affirmed its refusal of the request and also relied on section 35 as a further ground for its refusal. I understand that the applicant also sought the withheld records under the Data Protection Act 2018 in or around that time.

On 13 January 2022, the applicant applied to this Office for a review of the Department-™s decision on his FOI request of 8 May 2018. On the same date, this Office informed the applicant that his application had not been accepted in circumstances where it was made outside the six-month time limit and where the Department had advised the applicant of his right of appeal and of the time limits involved. We explained that one of the options open to the applicant was to submit a new request to the Department. He duly did so on 13 January 2022.  

In a decision dated 9 February 2022, the Department refused the request under section 15(1)(g) of the Act, on the ground that the request was part of a pattern of manifestly unreasonable requests. The applicant sought an internal review of that decision, following which the Department affirmed its refusal of the request. It said it considered the request to form part of a pattern of conduct that amounts to an abuse of process and falls within the category of vexatious. On 7 September 2022, the applicant applied to this Office for a review 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 communications between the Department and the applicant as set out above and to the communications between this Office and both the Department and the applicant on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Department was justified in its decision to refuse, under section 15(1)(g) of the Act, the applicant-™s request for certain records contained in a Rural Environment Protection Scheme file on the ground that the request is vexatious and forms part of a pattern of manifestly unreasonable requests.

Analysis and Findings

Section 15(1)(g) of the FOI Act provides for the refusal of a request where the FOI body considers it to be frivolous or vexatious, or to form part of a pattern of manifestly unreasonable requests. While the section identifies three specific characteristics which may lead to a decision to refuse a request, there may often be a degree of overlap. For instance, 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.

Generally speaking, a request is considered by this Office to be frivolous or vexatious where it has 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. We have previously set out a number of non-exhaustive factors that we consider relevant in assessing whether a request may be categorised as frivolous or vexatious and regard those non-exhaustive factors as equally relevant in determining whether or not there is evidence of a pattern of manifestly unreasonable requests. The factors include, but are not limited to;

1. The actual number of requests filed: are they considered excessive by reasonable standards?

2. The nature and scope of the requests: for example, 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 which has previously been addressed?

3. The purpose of the requests: for example (a) have they been submitted for their "nuisance" value, (b) are they made without reasonable or legitimate grounds, and/or (c) are they intended to accomplish some objective unrelated to the access process?

4. 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?

5. The intent of the requester: is the requester's aim to harass government or to break or burden the system?

It must be stressed that this list is non-exhaustive, nor is it necessary for all of the above factors to be present before a request can be refused under section 15(1)(g). Moreover, the outcome or cumulative effect of the requests is also a relevant consideration. It is also appropriate to consider the requests concerned 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. On that latter point, I note that in her judgment inKelly v the Information Commissioner[2014] IEHC 479, O-™Malley J. found that this Office was not confined to considering the specific request and that it was entitled to consider the wider context in which the request was made.

It is also important to note that while section 13(4) of the FOI Act generally requires public bodies to disregard any reasons for the request, a requester's motive for making an FOI request is relevant when considering the application of section 15(1)(g). In the aforementioned High Court proceedings, 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".

The Applicant-™s Submissions

In essence, the applicant argued that he has a genuine reason for making the requests (i.e. the records sought relate to an investigation by the Department which the applicant believes has adversely affected him). He argued that the Department-™s decisions are unfair and go against the spirit of the legislation regarding transparency and fairness. He said the information requested has not been provided, that any requests that were made were few in number and over a period of years, as opposed to weeks or months. He argued that as a reasonable period of time passed between requests, they were not vexatious. He said the same people dealt with the requests and the same cover letters were used, hence, little to no extra work or burden was placed on staff. He said it was never explained to him that the requests could be declared vexatious. He said there is a very serious purpose and value for seeking the information. He said he did not initially appeal the Department-™s decisions in 2015 and 2018 as he feared he and his family would face repercussions from the Department for doing so.

The Department-™s Submissions

In its submissions, the Department said it considered the repeated submission of the same request revisiting an issue which has previously been addressed on a number of occasions to be manifestly unreasonable. It said the request formed part of a pattern of conduct that amounts to an abuse of process and therefore falls within the category of -˜vexatious-™. It said it recognises that a member of the public has the right to request a public body to reconsider a decision as regards release of records and understands why they may wish to follow up. However, it said three requests under FOI legislation, with an internal review subsequently requested in respect of two of them, in addition to a request under the Data Protection legislation is excessive and an abuse of the process. It said that in 2018, the applicant also emailed the internal reviewer on three occasions and the decision-maker on the Data Protection request twice. It said there are 324 records numbered on the REPS file, all of which were released bar seven records which were withheld in accordance with the exemption provisions in the FOI legislation. It said the basis for their non-release was advised to the applicant directly on a number of occasions, both in formal decision letters and verbally.

Responding to the applicant-™s submissions that the requests were few in number and placed little or no extra work or burden on staff, the Department said it did not consider the level of requests as listed above to be few in number, especially taken in combination with the other contact [made by the applicant]. It said every FOI request received by an officer, even when the request is from the same person and seeking information previously considered, must be dealt with as a fresh and separate request, with the decision not influenced by any previous FOI request or decision.

My Analysis

The refusal of a request under section 15(1)(g) is not something that should be undertaken lightly. As its Long Title states, the purpose of the FOI Act is 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. The Act demands that FOI bodies meet very high standards in dealing with requests. They are required to go through the rigorous processing requirements of the Act. However, we also take the view that the legislation assumes reasonable behaviour on the part of requesters.

As I outlined above, 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. It seems to me that the manner in which the applicant has used the FOI process in this case has contributed, in part at least, to the Department-™s decision to refuse his recent request under section 15(1)(g).

It seems to me that when the Department initially decided to withhold a number of records on foot of his request in 2015, the most appropriate course of action for the applicant to take would have been to seek an internal review of that decision and, subsequently, to apply to this Office for a review of the decision if his application for internal review was unsuccessful. He did not do so and instead, he submitted a fresh request for the refused records in 2018, along with a request for the records under data protection legislation. When that second request was refused at both stages of the process, it was again open to the applicant to apply to this Office for an internal review of that decision. While he eventually did so, it was approximately two years after the time-frame within which the application should have been made.

The applicant has not explained why he did not seek an internal review of the Department-™s decision on his 2015 request. Nevertheless, I can understand that a requester may wish to make a fresh request for records that were previously withheld following the passage of time. I also note the applicant-™s explanation for the delay in applying to this Office for a review of the decision on the 2018 request, namely his concern about potential repercussions. While it seems to me that such concerns were misplaced, I have no reason to doubt the applicant-™s explanation. It is also relevant that the applicant made the third request for the previously refused records on the basis of advice given by this Office.

While I can fully understand the Department not wishing to have to process repeated requests for the same records, it seems to me that the repeated requests in this case were not made in bad faith. In the particular circumstances of this case, I am not satisfied that the actual number of requests filed can be considered excessive by reasonable standards. Moreover, I am not persuaded that any of the other factors I have identified above as relevant in assessing whether a request may be categorised as frivolous or vexatious or forming part of a pattern of manifestly unreasonable requests arise in this case.  While the Department may legitimately argue that the requests seek to revisit an issue which has previously been addressed, I am not persuaded that this was done in bad faith, such that the recent request can be deemed to be vexatious or part of a pattern of manifestly unreasonable requests.

In all of the circumstances, therefore, I consider that the most appropriate course of action to take in this case is to annul the Department-™s decision on the applicant-™s request and to remit the matter back to the Department to consider the applicants-™ request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Department-™s decision.

Finally, I wish to add that my finding in this case does not mean that the Department is not entitled to deem subsequent related requests to be vexatious. As I have explained above, while the FOI Act demands that FOI bodies meet very high standards in dealing with requests, this Office takes the view that the legislation also assumes reasonable behaviour on the part of requesters.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department-™s decision to refuse the applicant-™s request under section 15(1)(g) of the FOI Act. 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 Investigator