Whether the Council was justified, under section 15(1)(g) of the FOI Act, in refusing the applicant's requests for certain records on the ground that his requests are vexatious and/or form part of a pattern of manifestly unreasonable requests

13 December 2023

Background

This review concerns the Council's refusal of two FOI requests made to it by the applicant. In the circumstances, I consider it appropriate to summarise the requests and the ensuing decision making process, as follows:

The applicant's requests of 20 April 2023 and 8 May 2023 sought various records relating to a planning enforcement matter and to materials utilised on certain state funded infrastructural projects. On 19 May 2023, the Council refused each request under 15(1)(g) of the FOI Act. The applicant sought an internal review of the Council's decisions on 22 May 2023. On 9 June 2023, the Council affirmed its original decision on both requests. The applicant applied to this Office for reviews of the Council's decisions on 18 July 2023 and 21 August 2023 respectively.

During the course of this review, the Investigating Officer wrote to the applicant and provided him with details of the Council's submission setting out the reasons why it refused his request under section 15(1)(g) of the FOI Act. She offered the applicant an opportunity to comment. The applicant provided his comments to this Office on 10 October 2023.

I have now completed my review of these cases in accordance with section 22(2) of the FOI Act. In light of the fact that the parties to the review are the same in both cases, and having regard to the overlapping nature of the requests and the basis for the Council's decisions in both cases, I have decided to conclude the reviews by way of a formal, binding composite decision. In carrying out my reviews, I have had regard to the correspondence between the applicant and the Council as outlined above and to the correspondence between this Office and both parties on the matter.

Scope of Review

This review is solely concerned with whether the Council was justified in its decision to refuse the applicant's two requests under section 15(1)(g) of the FOI Act on the basis that the requests are vexatious and/or form part of a pattern of manifestly unreasonable requests from the same requester.

Preliminary Matters

I wish to make a number of comments before I address the substantive issues arising in this case. 

During the course of this review, the applicant raised concern that his applications were being reviewed together, despite him submitting them separately to this Office. I am satisfied that the process followed was fair and generally in compliance with the summary procedures we have published on our website (available at:https://www.oic.ie/guidance-and-resources/Our-Procedures/Summary-ProceduresV3.pdf). Section 45(6) of the FOI Act provides that the procedure for conducting a review under section 22 shall be such as the Commissioner considers appropriate in all the circumstances of the case and, without prejudice to the foregoing, shall be as informal as is consistent with the due performance of the functions of the Commissioner. In the circumstances, I am satisfied that it is appropriate that I review both cases together.

The applicant also raised a number of concerns about certain actions of the Council. 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. Accordingly, the appropriateness, or otherwise, of the actions taken by the Council which were raised by the applicant is not a matter for consideration by this Office.

Lastly, section 22(12)(b) of the FOI Act provides that when I review a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Council to satisfy this Office that its decisions were justified.

Analysis and Findings

Section 15(1)(g)

Section 15(1)(g) provides that an FOI body may refuse to grant a request where it considers that the request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests. While section 15(1)(g) 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. This approach was endorsed by the Court of Appeal inGrange v Information Commissioner[2022] IECA 153. 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?

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.

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".

While I do not propose to set out the submissions of both parties to the review in full, I can confirm that I have had regard to them for the purpose of making this decision.

The Council's Submission

The general thrust of the Council's submission is that the applicant, who is a member of staff of the Council, is using information obtained during the course of his work to submit FOI requests seeking further information in relation to a number of individuals with whom he has ongoing issues.

The Council said that the applicant has submitted a total of 6 FOI requests since 2022. It said that while the first two requests were part-granted and refused respectively, the remainder of the requests were refused, as it became obvious that the applicant was targeting the same three individuals. It said that the requests form a very clear pattern that the applicant has serious concerns about the handling of certain issues by the Council where a number of individuals are concerned. It said that there are concerns that the applicant is trying to carry out his own investigations in relation to those issues, rather than allowing the Council to manage cases within the expertise of individual departments and based on legal advice. It said that there are processes in place to deal with the issues raised by the applicant and that the Council is actively addressing his concerns through a number of those processes, for example, by conducting an investigation in accordance with the Council's Grievance Policy and Procedure. The Council said that this investigation has now been finalised and has gone to the next stage of the process to consider the report before any recommendations are made. It said that the applicant has also submitted a number of data access requests and directly emailed several staff in the Council in relation to enforcement matters, including the Chief Executive of the Council.

The Applicant's Response

In his submissions to this Office, the applicant denies that he is targeting certain individuals and is acting in a vexatious manner. He argued that he was not seeking to carry out any investigation as stated by the Council, but that he sought the truth as to why he was "abandoned" by the Council in the course of his employment, which he said were "life changing incidents". He outlined the various processes through which he had raised his concerns with the Council, which included contacting the Chief Executive and senior management in relation to his concerns.

In his submissions, the applicant said that after he received the Council's decisions on 9 June 2023 he submitted a Data Access Request on 12 June 2023 to query what information the Council had for what he described as unfounded comments that he was targeting individuals and businesses, which he claims was the only basis for the refusal of his FOI request.

The applicant said that he had previously tried to access the information sought from the Council outside the FOI Act. He said that his requests to the Council and to this Office were made on a personal basis and not as an employee of the Council. He argued that the information sought should be available to the public in any event, as it involves the use of public funds. In relation to his previous FOI requests, the applicant said that they were made in relation to the activities of certain businesses and individuals connected to an unauthorised development and the supply of certain products to state funded projects. He argued that while he was not in a position to appeal the Council's decisions on his first two requests at the time, had they been accepted "there never would have been 6 in total". He argued that the number of requests he submitted reflected the release of new information and that he could not be found to have abused the right of access under the FOI Act, because he has not been granted access to any of the information requested. The applicant stated that the number of FOI requests that he submitted is purely based on the fact that the Council rejected every single one of them. He said that if the information requested in the first one or two requests was provided, he would never have needed to submit the remaining requests.

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 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 FOI 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 FOI Act. However, this Office takes 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. Essentially, the Council is of the view that the requests submitted by the applicant to date, including the requests that are the subject of this review, form part of his grievance with the Council as to how it has dealt with certain matters. Its position is that there is evidence of a clear pattern of conduct and communications relating to those matters which has passed the stage of reasonableness and which the Council now considers to be vexatious.

In his submissions to this Office, the applicant questioned the appropriateness of the Council revealing that he is one of its employees in circumstances where he made his request on a personal basis. As noted above, while 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). Therefore, in my view, it is appropriate that the Council set out its rationale, including any factors it deemed relevant, when it concluded that his requests form part of a pattern of unreasonable requests.

I am willing to accept that the applicant's requests amount to a pattern of conduct, insofar as his requests concern matters arising from the planning enforcement case and related issues highlighted by the applicant. However, in the circumstances of this case, I am not satisfied that the pattern, at this time, amounts to an abuse of process or an abuse of the right of access. While I acknowledge there were a number of factors, and not just the number of requests, which the Council took into consideration when making its decision, I note that the Council decided after the applicant had made two FOI requests to refuse his subsequent requests on the basis of his pattern of conduct amounting to an abuse of process and an abuse of the right of access.

It seems to me that when the Council refused the applicant's first two requests, in full and in part respectively, that the most appropriate course of action for the applicant to take would have been to seek an internal review of the Council's decisions and, subsequently, to apply to this Office for a review of the decisions if his applications for internal review were unsuccessful. He did not do so and instead, he submitted a fresh request on the matter. The applicant has not explained why he did not seek internal reviews of the Council's decisions on the first two requests, other than stating that he was not in a position to do so at the time. Nevertheless, I can accept that a requester may wish to make a fresh request for records on foot of new information coming to light, which the applicant claims to be the case. In the particular circumstances of this case, and having regard to the timing of the Council's decisions in this case, I am not satisfied that the actual number of requests made by the applicant can be considered excessive by reasonable standards.

In his submissions to this Office, the applicant said that his grievance was targeted at the failings of his employer and not at any individual. 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. While the Council contends the applicant is using FOI to target certain individuals, the applicant denies this and said he is seeking information in an attempt to understand how the Council have handled complaints he has made to his employer that have impacted on him. Moreover, I am not persuaded that any of the other non-exhaustive 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 Council said that the investigation concerning the applicant's grievance has now been finalised and gone to the next stage of the process, it has provided no evidence, for example, that the applicant is attempting to reopen a matter that has been dealt with previously or that he is trying to harass or burden the Council. On balance, while I appreciate that the Council may be frustrated by the applicant's use of FOI to pursue grievances that it is dealing with, I am not satisfied that the Council was justified in refusing the applicant's requests under section 15(1)(g) of the FOI Act, and I find accordingly.

In all of the circumstances, therefore, I consider that the most appropriate course of action to take in this case is to annul the Council's decisions on the applicant's two FOI requests and to remit the matters back to the Council to consider the applicants' requests afresh and make new, first instance, decisions 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 Council's decisions in respect of either request.

Finally, I wish to note that my finding that the Council was not justified in refusing the requests 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. 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 Council's decisions to refuse the applicant's FOI requests under section 15(1)(g) of the FOI Act. I direct the Council to conduct fresh decision-making processes on the applicant's two FOI requests.

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.

Richard Crowley
Investigator