Whether the Department was justified in refusing access to records relating to the applicant on the basis that sections 15(1)(g), 15(1)(i) and 33(3)(c)(i) apply

19 October 2023

Background

By way of background, I understand that the applicant in this case made a number of detailed allegations of wrongdoing concerning a particular international body and that he has also made the Department aware of his concerns. On foot of this, the applicant has made a number of previous FOI requests to the Department regarding him and/or the international body concerned, with which the Department has dealings.

On 19 February 2023, the applicant wrote to the Department seeking copies of communications and documents sent by the then Minister for Finance-�s private secretary between 1 July 2021 and 31 December 2022, where he was referred to by name (part A). On 5 March 2023, the applicant wrote to the Department attaching a partially redacted document which had previously been released to him in response to another FOI request. The author of the document referred to two attached emails. In his request the applicant said he was seeking a copy of both emails (part B).

The Department dealt with parts A and B as one request. On 7 March 2023, the Department issued an original decision refusing the applicant-�s request on the basis that section 15(1)(g) of the FOI Act applied. It stated that the applicant had made a number of similar FOI requests in previous years and that records relating to his earlier requests had already been released. It said that any additional records that may exist would have been generated solely for the purpose of dealing with his FOI requests and/or would comprise correspondence the applicant had sent to the Department. Its position was that any responses to his correspondence would already be in his possession. It said that it considered this behaviour to constitute a pattern of manifestly unreasonable requests. The Department stated that it had received correspondence from the applicant on 15 and 17 February 2023, seeking un-redacted versions of records which had been withheld in response to a previous FOI request. It said that although this recent correspondence had not expressly been submitted as FOI requests, that they -�appear[ed] to be an attempt to circumvent-� its decision to part grant these records, which it stated was ultimately upheld by the OIC (OIC-124211-Z3B0S3 refers).

The Department concluded that the applicant-�s requests in this case, his correspondence apparently seeking access to records outside FOI which had been withheld in part in response to an earlier request, as well as his previous similar requests, formed a pattern of manifestly unreasonable requests. It said that any records sought previously had been released as far as it was possible to release them, and that, essentially, it was not reasonable to expect it to continue processing the applicant-�s FOI requests where further records relating to him were solely generated by his additional requests.

The Department has numbered the cover email (referred to by the applicant in part B of his request) as record 1 and the two attachments as records 2 and 3 respectively. I have adopted the Department-�s numbering.

On 3 April 2023, the applicant made an internal review request. On 3 May 2023, the Department issued an internal review decision. It said it was affirming part A of the request on the basis of section 15(1)(g). It also stated that the information contained in records 2 and 3 which had been withheld from release in response to a previous request was exempt under section 33(3)(c)(i). During the course of this review, the Department clarified that it intended to rely on section 15(1)(g) in respect of parts AandB.

During the course of this review, the Investigating Officer drew the Department-�s attention to some factual discrepancies in its description of the records relating to part B in its internal review decision. Essentially, given the dates and author of the records it was unlikely that the two emails the applicant was seeking were the records it referred to in its internal review letter. The confusion appears to have arisen following an earlier email from the applicant in February 2023 seeking un-redacted copies of the emails previously reviewed by this Office in case OIC-124211-Z3B0S3. In response, the Department acknowledged that the records sought by the applicant are not those it referred to in its internal review decision. It has provided this Office with a copy of the two email attachments sought and stated it wished to rely upon sections 15(1)(g) and 33(3)(c)(i) to refuse access to both records. In addition, the Department said that as record 2 comprised a copy of correspondence between the applicant and a third party, it was also relying upon section 15(1)(i) to refuse access to this record.

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 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.

Preliminary Matter

It is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies, or by any other parties.

Analysis and Findings

As set out above, the Department is relying on section 15(1)(g) to refuse the entirety of the applicant-�s request. It also indicated that it wished to rely on section 33(3)(c)(i) to refuse access to records 2 and 3 and section 15(1)(i) to refuse access to record 3.

Section 15(1)(g)

Section 15(1)(g) of the FOI Act provides for the refusal of a request that an FOI body considers 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 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.

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). It is also appropriate to consider the request 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 inKelly v the Information Commissioner[2014] IEHC 479, the High Court 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. This view was endorsed by the Court of Appeal inGrange v the Information Commissioner[2022] IECA 153, which found that this Office was -�entitled to take into account the history of dealings between the appellant and the Department and the previous FOI requests insofar as they were relevant to the appellant-�s grievances, as well as the context of the FOI request in question-�.

In its submissions to this Office, the Department said that, over time, the topic of the applicant-�s requests changed focus from requests related to the specific international body, to requests for correspondence which mention him by name. The Department said that while in principle the applicant-�s requests would appear to be reasonable, in context, it has -�no dealings with the applicant-� outside of processing his FOI requests, and/or processing correspondence sent by him to the Department. It provided details of the applicant-�s previous FOI requests, which were made over a four-year period; one in 2019, three in 2020, four in 2021 and two (the subject of this review) in 2023. It said that the content of his requests varied, but that it was clear that all of his requests related to a specific matter which he appeared to be pursuing.

Essentially, the Department-�s position is that at this point, the applicant is seeking records under FOI which either originated from him or have been already provided to him. It said that each new FOI request or piece of correspondence received from the applicant triggered a further FOI request for any administrative records that may have been created in the process of issuing a response. It outlined its view that the applicant-�s requests are frivolous and vexatious as each request requires the Department to review records and correspondence already issued to the applicant in a search for fresh records.

In relation to part B of the applicant-�s request the Department stated that it has always been its position that records between it and international bodies are considered highly restricted and confidential. It stated that in all cases where this has been possible it has released records to the applicant -�to the fullest possible extent-�. The Department-�s position was that given the extent of the applicant-�s knowledge of the issues at hand, as evidenced by the material and communications supplied by him, and in view of previous decisions from this Office relating to the Department-�s decisions to refuse access to similar records, it considered that it was reasonable to conclude that the applicant was being frivolous or possibly vexatious in seeking access to records between the Department and international bodies.

As outlined above, during the course of this review, it became clear that the Department initially did not identify the correct records sought by the applicant in relation to part B of his request. The Department initially said that record 2 was part released to the applicant in response to a prior FOI request. It subsequently clarified that part of the first page was considered and released, but that the rest of the record was not. The Department-�s position was that the remainder of the record was exempt under section 33(3)(c)(i) of the FOI Act, but it could not explain why the records schedule of the previous FOI decision did not reflect the refusal of the entire record. It said that record 3 was a copy of correspondence between the applicant and the internal body, who had shared it with the Department. The Department said that it considers all correspondence from the body concerned to be highly confidential, however, it also said that section 15(1)(i) would appear to apply as the applicant was in possession of the record concerned.

Essentially, the Department-�s position was that any records relating to the applicant-�s earlier requests had already been issued to him, and that his current request appeared to be an attempt to either have redacted material reconsidered for release, or was made in the hope that additional material had been generated following his prior requests. The Department also essentially argued that as the applicant made previous requests of a similar nature, which were in part refused on the basis of section 33(3)(c)(i), that he ought to have known that part B of his current request would be refused, and that therefore the request was frivolous.

Clearly the Department holds at least two records relating to the applicant-�s request in this case which were not considered in full in response to previous FOI requests, even though they appear to have come within the scope of an earlier request. Furthermore, while section 33(3)(c)(i) provides, among other things, that a head shall refuse to grant an FOI request if the record concerned is information communicated from, to, or within an international organisation of states or a subsidiary organ of such an organisation or an institution or body of the European Union, the information must have been communicated in confidence. Accordingly, section 33(3)(c)(i) does not provide for the mandatory refusal to releaseallrecords of correspondence between the Department and an international organisation, just those communicated in confidence. In any event, the Department is required to consider the content of each of the records sought on its own merit, even if section 33(3)(c)(i) is ultimately relied upon.

I am willing to accept that the applicant-�s requests amount to a pattern of conduct, insofar as he appears to have made new access requests on foot of material received in response to earlier FOI requests. However, in the circumstances of this case, the Department has failed to satisfy me that the pattern amounts to an abuse of process or an abuse of the right of access. During the processing of some of the applicant-�s FOI requests he appears to have become aware of further records which are related to his grievance, e.g. the two attachments to the email referred to in part B of his request. While the Department initially took the view that these records had been previously considered in full and released in part, it has since acknowledged that this was not the case. The Department informed this Office that due to staffing changes, it was unable to confirm whether record 2 was considered in full or to explain why this may not have been done.

While the Department refused the applicant-�s request, at least in part, on the basis that he was attempting to seek access to records which had previously been refused in full or in part, it has since acknowledged that this was not the case. In the circumstances, it seems reasonable for the applicant to make a new request for records which were referenced in a record released in part, but not included on the records schedule, and where it appeared that the Department had not made a decision on them.

The applicant may be pursuing a grievance concerning the internal body in question. However, in my view, the fact that an FOI request might be driven by a particular agenda does not mean that the request is necessarily vexatious. In part A of his request, the applicant appears to be seeking to understand what occurred on foot of his correspondence with the Minister-�s private secretary. It may be the case that nothing occurred, in which case no additional records would have to be considered for release. As noted above, it is clear that part B of his request arose in circumstances where records should have been identified and considered by the Department in response to his previous request. I appreciate that the Department may find it frustrating to process the applicant-�s FOI requests, however, it has not satisfied me that the applicant-�s use of FOI in this case amounts to either an abuse of process or an abuse of the right of access. On balance, taking all the circumstances into account, I am not satisfied that section 15(1)(g) applies to either part A or B of the applicant-�s request. Accordingly, I find that the Department was not justified in refusing the applicant-�s request under section 15(1)(g) of the FOI Act.

Section 33(3)(c)(i) and 15(1)(i)

As outlined above, during the course of the review the Department identified the correct records in relation to part B and indicated that it would rely on section 33(3)(c)(i) and 15(1)(i) to refuse release if it were to make a decision on these records. The role of this Office is to review decisions taken by FOI bodies on requests, not to effectively act as a first instance decision maker. In the circumstances, I consider that the most appropriate course of action to take is to annul the Department-�s decision in its entirety, the effect of which is that the Department must consider the applicant-�s 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.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department-�s decision. I find that the Department was not justified in refusing the request on the basis of sections 15(1)(g), 15(1)(i) and 33(3)(c)(i). I direct the Department to conduct a fresh decision-making process on the applicant-�s FOI 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.

Sandra Murdiff
Investigator