Whether UnaG was justified in refusing, under section 15(1)(g) of the FOI Act, access to bank statements sought by the applicant on the basis that her request is frivolous or vexatious or forms part of a pattern of unreasonable requests

8 November 2023

Background

The applicant is a member of a small Gaeltacht community. Údarás na Gaeltachta is a funding body for a particular group in her Gaeltacht area which promotes the Irish Language and provides a number of services to the local community. Given the small nature of the areas to which the information relates and some of the allegations of financial mismanagement or other impropriety, I am somewhat limited in how I can describe the particulars of this case in my decision.

In an original request dated 1 April 2023, the applicant sought a copy of bank statements for 2022 and from 1 January 2023 to 30 March 2023 which demonstrate payments relating to the development of the Irish Language Plan (Language Plan) to a particular group (Group X).

On 18 April 2023, the Údaras na Gaeltachta issued a decision refusing the request on the basis that the request is frivolous, vexatious or forms a pattern of unreasonable requests under section 15(1)(g) of the FOI Act. UnaG said that it had received seven applications from the applicant in the past 16 months, some of which involved a lot of work. It said that this request related to matters which had already been addressed in a previous FOI request. It noted that the subject matter of the request is related to the applicant's previous FOI requests.

In her internal review request dated 7 May 2023 the applicant acknowledged that she had previously been provided with a number of bank statements by UnaG. She said that she had been told that there was one account for the Language Plan and a main account for the lead organization which contained information not related to the Language Plan. She said that the information she is seeking does not appear on the bank statements sent to her. She said it does not appear that she received any statement for a separate bank account for the Language Plan. She re-iterated that she was seeking a copy of the bank account statement for the Group X's Language Plan showing income and expenditure between January 2022- March 2023.

On 26 May 2023, UnaG affirmed its original decision and noted some of the information sought had already been provided to the applicant. On 3 July 2023, the applicant applied to this Office for a review of UnaG'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 applicant and UnaG as outlined above and to the correspondence between this Office and both parties, including the submissions made on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is solely concerned with whether Údarás na Gaeltachta was justified in refusing, under section 15(1)(g) of the FOI Act, the applicant's request for access to the relevant bank statements on the grounds that the request is frivolous or vexatious or forms part of a pattern of unreasonable requests.

Preliminary Matters                                                                       

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

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 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 not 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 in Kelly 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. This view was endorsed by the Court of Appeal in Grange v the Information Commissioner [2022] IECA 153. In that case, the Court of Appeal 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"�.

When considering whether a request forms part of a pattern of manifestly unreasonable requests in accordance with section 15(1)(g), the question I must consider is whether the requests, when considered together, form a pattern of manifestly unreasonable requests such that any request forming part of that pattern may be refused under section 15(1)(g).

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".

When considering whether a request forms part of a pattern of manifestly unreasonable requests, it seems to me that the question I must consider is not whether each request, of itself, is manifestly unreasonable. Rather, I believe that the appropriate approach to take is to consider whether the requests, when considered together, form a pattern of manifestly unreasonable requests such that any request forming part of that pattern may be refused under section 15(1)(g).

Údarás na Gaeltachta's Submissions

In submissions to this Office, UnaG outlined that the applicant had made seven FOI requests over a 16-month period. It said that some of the FOI requests were quite large and took up a large amount of the executive's time. Údarás na Gaeltachta provided a copy of all of the FOI requests to this Office. UnaG outlined its view that the purpose of the requests appears to be to question "every aspect of the work"� of Group X. It said that all of the grievances raised by the applicant have been examined by an tÚdarás and no wrongdoing of any kind has been found. It also said that this conclusion has been communicated to the applicant on more than one occasion. Údarás na Gaeltachta said that in addition to the FOI requests, it has also received a number of letters from the applicant and another individual outlining various grievances regarding the work of Group X, including the language planning process in a particular area, the development of a particular infrastructure project and other matters pertaining to the work and functions of the Group X. Údarás na Gaeltachta provided this Office with a sample of such correspondence the applicant sent to its executives and other parties. The Investigating Officer provided the applicant with a copy of the correspondence for her consideration.

In essence, UnaG said that the letters demonstrate that the applicant is using records released under the FOI process to attempt to substantiate claims made in the correspondence. Údarás na Gaeltachta said that these claims have been investigated and proven to be without foundation. Údarás na Gaeltachta said that it was of the view that the pattern of requests combined with the other correspondence to be vexatious and an abuse of the FOI process. It said that as an organisation it is committed to implementing the FOI Act, to carrying out FOI requests to the best of its ability and outlined its commitment to the open and transparent provision of information. It said that the applicant has sought and received the records in its possession and it was of the view that she does not appear to accept that there has been no wrongdoing regarding the financing of Group X and its activities. It said that it considers the continuous questioning and airing of grievances to be vexatious and against the spirit of the FOI Act.

The applicant's submissions

The Investigating Officer provided the applicant with a summary of UnaG's submissions. In summary, the applicant argued that seven FOI requests over 16 months is not excessive. The applicant acknowledged that one FOI was large but outlined that she engaged with the FOI Officer and reduced the scope of the request. She also highlighted that she paid a fee of €500 in that request.

The applicant outlined her "serious misgivings"� about Group X, namely concerns regarding its governance, financial management, adherence to legal obligations and issues of transparency regarding the expenditure of public monies. The applicant said that her concerns were investigated by Údarás na Gaeltachta which is the funding body of Group X. It is clear that the applicant does not accept that the investigation was thorough. The applicant appeared to suggest that the funding body finding no wrongdoing was not an indication that no wrongdoing had occurred. She said it was simply untrue to say that there was no foundation to her claims. The applicant provided a number of examples of alleged wrongdoing, including a number of developments which she said had been built without planning permissions. She said that such instances of non-compliance were ultimately resolved by the awarding of retention of planning permissions being issued by the relevant County Council. She said the resolution of that issue came about because such information was "revealed through FOI"�.

The applicant outlined her views of the effects of what she perceives to be poor management by the Company funded by UnaG on the local community. The applicant argued that there was nothing amiss with using the documents released to her under FOI to support her claims. She said that her concerns have not been proven to be without foundation and issues were exposed which had to be rectified. She submitted that FOI was the only way she is able to access any information and noted that she has been polite and respected the work created by her FOI requests. She said that she facilitated any request to reduce the scope of her requests.

The applicant said that her previous requests for financial records were heavily redacted, not in the proper form and/or not complete. She said her requests regarding the Language Plan bank statement were made to establish where its budget was being spent. She said she had been told by an official in UnaG that funds regarding the Language Plan has a separate bank account but some expenditure through the main bank account would be normal but marked as expenditure for the Language Plan.

The applicant outlined her view that the information provided to her previously is incomplete. She said that the funds are public money and as such as members of the public she is entitled to such information. She said she believes her request is being refused by UnaG as frivolous or vexatious as it does not want it known publicly how the money is being managed.

My analysis

The FOI Act affords important access rights to records held by FOI bodies. Indeed, in performing any functions under the Act, FOI bodies must have regard to 

• the need to achieve greater openness in their activities and to promote adherence by them, to the principle of transparency in government and public affairs, 
• the need to strengthen the accountability and improve the quality of decision making of FOI bodies, and
• the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies.

The refusal of a request under section 15(1)(g) is not something that should be undertaken lightly. As its Long Title of the Act 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. The fact that requests may cause an administrative inconvenience is not sufficient reason to refuse requests on the grounds that they are frivolous or vexatious. However, the Act assumes reasonable behaviour on the part of requesters. I would add that I would expect the applicant to have appropriate regard to the impact on UnaG's other functions of processing multiple and/or very detailed requests.

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. UnaG's argument appears to be that it has provided the applicant with all relevant information, that she has made an excessive number of FOI requests over a short period of time and that she is using the FOI process to prolong a grievance. The fact that a pattern of conduct exists is not, of itself, sufficient. The pattern of conduct must be such that there is an abuse of process or an abuse of the right of access.

In this case, the applicant has sought access to financial records she believes demonstrates how a particular fund is being spent or not spent. UnaG previously supplied the applicant with some of the financial information for January to July 2023. The applicant believes she has not been provided with the full details she requested. I acknowledge that the applicant has made seven FOI requests regarding Group X, some of which were quite detailed, but I do not consider that this forms a pattern of conduct that amounts to an abuse of process or an abuse of the right of access.

Furthermore, I do not consider that the request was made in bad faith. It seems to me that the applicant is seeking to understand how particular decisions were made that concern the small community where she lives and how public monies were being spent by the local language planning group. On balance, taking all the circumstances into account, I do not consider that UnaG has justified its decision to refuse the applicant's request on the basis of section 15(1)(g).

In all of the circumstances, therefore, I consider that the most appropriate course of action to take in this case is to annul UnaG's decision on the applicant's request and to remit the matter back to UnaG 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 she is not satisfied with the UnaG's decision.

Finally, I wish to note that my finding that UnaG was not justified in refusing the request at issue under section 15(1)(g) does not mean that it cannot refuse any future related requests from the applicant on those grounds. The FOI process 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 Údarás na Gaeltachta and direct it to undertake 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.

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Richard Crowley

Investigator