Whether the Council was justified in refusing the applicant's request for records under section 15(1)(g) of the FOI Act, on the ground that the request is vexatious or forms part of a pattern of manifestly unreasonable requests from the applicant

10 January 2024

Background

In a request dated 14 November 2022, the applicant sought access to "all the paper trail if any staff member including engineers of cork county council, including the Fermoy MD and the cork national roads office were involved in the submission of TII to the planning register file [Planning File Number]". The applicant noted that Transport Infrastructure Ireland (TII) is a prescribed body (under planning regulations). She asked the Council to advise "if so, if this involvement was with the approval or knowledge, consent" of the manager of Cork National roads office and/or a named individual, and to forward any relevant records. She also asked it to advise if this involvement was with the approval, knowledge or consent of the Director of Roads and Transportation and to forward any relevant records.

On 12 December 2022, the Council refused the applicant's request under section 15(1)(g) of the FOI Act. The Council said the applicant's request is the most recent of an excessive number of requests received from the applicant, all relating to the same matter. On 5 January 2023, the applicant sought an internal review of that decision, following which the Council affirmed its original decision. On 31 July 2023, the applicant applied to this Office for a review of the Council's decision.

During the course of this review, the Investigating Officer wrote to the applicant and provided her with details of the Council's submission setting out the reasons why it refused her request under section 15(1)(g). She informed the applicant of her view that the Council was justified in refusing the request under section 15(1)(g) of the FOI Act. She offered the applicant an opportunity to comment. The applicant provided her comments to this Office on 24 November 2023.

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 the Council 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 concerned solely with whether the Council was justified in its decision to refuse, under section 15(1)(g) of the FOI Act, the applicant's request for various records relating to the submission of TII in a specified planning case, on the ground that the request is vexatious or forms part of a pattern of manifestly unreasonable requests from the applicant.

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 forms 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".

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).

The Council's Submission

In its submission to this Office, the Council said that the applicant has been placing FOI requests since 2021, all of which concern a development where a planning application was refused. It said that while it has made an effort to consider each request on its own merit, it can no longer sustain the incorrect use of the FOI Act, the unacceptable customer behaviour and the volume of requests from the applicant. It noted that the applicant has made 19 FOI requests to the Council to date and had appealed a number of its decisions to this Office.

The Council said that the manner in which the applicant has used FOI has at times been incorrect, as "many requests are contained in complaint emails to the Chief Executive office and other departments." It said that the same matter is often raised "as an FOI, a formal complaint, an email to the Chief Executive, one to the Roads department etc.". It said that correspondence from the applicant has been occupying several departments at the same time because of duplications of requests. It said that the applicant also visits, and makes telephone calls to, the County Hall, Local Roads Office and to the Director of Service for Roads and the Director of Service for Corporate.

While the Council said that to retrieve details of every contact the applicant made with the Council would cause an unreasonable disruption of operations, a Mail Meter search of correspondence from the applicant, concerning a dwelling where planning permission was refused, generated 1,565 records. It said that FOI requests from the applicant are typically worded as general queries, at times are confusing, and require assistance and refinement in order for the requests to be processed as FOI requests.

In its submissions to this Office, the Council noted the applicant's comment in her FOI request that TII is a prescribed body [under the Planning and Development Regulations]. The Council said that this is pertinent in that in itself it demonstrates that the applicant is conversant with the Planning process and legislation. The Council outlined the consultation process with prescribed bodies that it is required to undertake. The Council said that Article 189 of the Planning & Development Regulations 2001 (as amended) deals with the requirement to consult with prescribed bodies. In regard to the planning file at issue in this case, the Council said that as the planning file is a public record, the applicant is aware of the referral letter that issued to TII and of TII's submission in the matter.

The Council said that the applicant asks in her request whether the National Roads Office, who are a separate entity from TII, were involved in the submission from TII and if the Director of Service in the Roads and Transport Directorate was also 'involved'. Its position is that the applicant is well versed in FOI and planning legislation and that her request suggests impropriety in the process. It said that the applicant's detailed knowledge of the relevant procedures and legislation is evidenced in the present request and other requests that she has submitted to the Council. It said that the wording of the applicant's request in this case was deliberately phrased in a manner that goes beyond a simple request for records, but alludes to some involvement by the Council in a submission from a third party where the Council was obliged, in law, to consult with that party.

The Council said that the relentless submission of vexatious requests and use of internal review and appeal process has had the effect of seriously affecting the running of daily functions of the Council given the time and resources that are required to deal with the application, internal review and appeal and the pressure caused by the short statutory deadlines by which responses must be issued.

The Council said that this demonstrates that the request was vexatious and was submitted solely for the purpose of being disruptive.

The Applicant's Response

In her submissions to this Office, the applicant outlined numerous matters relating both to the request and the subject matter of the request, along with the background issues that prompted the request. While I do not propose to set out her submissions in full, I can confirm that I have had regard to them for the purpose of making this decision. 

In summary, the applicant stated that she had concerns that the Council were denying safety to her and to other road users, following road works which were carried out in 2016. The applicant contends that all of the planning applications that she submitted since December 2017 were as a direct result of these road works and that the planning permission application file referenced in her request was an application to improve the safety of road users. The applicant referred to her previous FOI requests and to planning enforcement matters which she contends are "to ensure road users safety was as safe after the works as prior to works". In response to the Council's view that her requests were intended to be disruptive, the applicant said that "road safety cannot be intended to disrupt". The applicant claims it is not abusing the FOI process to obtain records which she is entitled to under FOI.

In her submissions to this Office, the applicant provided copies of two letters that she received from the Council, dated 12 December 2022 and 8 February 2023, which expressed concern regarding her continuous correspondence with the Council and its staff. In its letter dated 12 December 2022, I note the Council said"Your interactions with the Council demonstrate a pattern of excessive unacceptable behaviour. From the 1^stof June 2016 to the 30^thNovember of 2022, you submitted 1363 emails regarding planning matters, in addition to 19 Freedom of Information Requests and 11 Internal Reviews, as well as phone calls and visits to Council offices. This level of contact is high in comparison to conventional levels. You have exhausted the Freedom of Information and Internal Review processes for a planning-related grievance. Additionally, you have also used contacts outside of the FOI and IR processes in relation to this issue".In this letter to the applicant, the Council also said that she continues to raise issues to which numerous Directorates have responded, yet continues to demands more responses; continues to approach the Council about the issues through a variety of channels resulting in an excessive number of interactions inside the organisation; continually refuses to accept the Councils' decisions and explanations of what falls within its jurisdiction and has displayed excessive tenacity by requesting that questions that have already been addressed be revisited.

The applicant noted that this Office had annulled and varied the Council's decisions in relation a number of previous applications she had made to this Office. In regard to the 1,565 records which were recorded in the Mail Meter search conducted by the Council, the applicant said these would also have concerned matters other than those raised in her FOI requests, including matters in relation to an Enterprise Unit which she let from the Council. The applicant also contends that she had to send a number of reminders to emails that were "ignored", which she claims could be 50 percent of the total. While the applicant did not dispute that she made 19 FOI requests, she said that she only made one FOI request in 2021, and one in 2023. The applicant said that the Council never requested additional time when processing any of her FOI requests or her requests for an internal review. She said that she understood that TII is a separate entity and a prescribed body. However, the applicant said that she is not aware of Article 189 referred to in the Council's submissions to this Office.

The applicant contends that were she well versed in FOI, as claimed by the Council, her requests would not be confusing or need refinement. The applicant said she has improved but is on a learning curve. She said that she would have sent correspondence to the Chief Executive as he had "ultimate responsibility" for the matters of concern to her. The applicant said that the Council has ignored matters raised by her.

The applicant argues that her request was not frivolous or vexatious. She claims the Council want to hide behind this claim to deny her the paper trail of the records of each employee which she requested. She said that best practice on record management should be adhered to, in order to enable a requester to obtain as much information as possible from the FOI Body.

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 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, this Office takes the view that the legislation assumes reasonable behaviour on the part of requesters.

While the applicant disputes that all of the contacts she has had with the Council are about her road safety concerns/planning dispute, it seems to me that on any reasonable analysis of the matter, the applicant's engagements with the Council over the period in question have been excessive. It also seems to me that the applicant's use of FOI has formed an integral part of her strategy for challenging the Council in respect of her concerns about the road works at issue and related planning matters. While it is not unreasonable that a requester may avail of FOI to establish certain facts and information about an issue of concern, it is important for requesters to acknowledge that there are practical limits on the extent of the resources that an FOI body must expend in dealing with such requests.

The applicant has highlighted road safety concerns as a key element of her protracted engagements with the Council. This Office considers that the fact that there may be a public interest in the release of information sought in a request does not mean that the request cannot be refused under section 15(g) of the Act. This section of the Act provides an administrative ground for refusing a request in particular circumstances regardless of any public interest that might be served by granting the request.

Having carefully considered the submissions from both parties in this case, it is evident in my view that the applicant has had a substantial number of communications with the Council over the course of a number of years in relation to her grievance concerning planning and road safety matters that have resulted in a significant burden on the Council in terms of the time and resources required to deal with these matters over a prolonged period. Furthermore, it seems to me that the applicant has had little or no regard for the significant burden she has placed on the Council resources through the pursuit of her grievance. Having considered the applicant's overall pattern of engagement with the Council, I am satisfied that her many requests can reasonably be regarded as forming a pattern of manifestly unreasonable requests and that the request that is the subject of this review forms part of that pattern.

Having regard to the cumulative effect of the applicant's FOI requests to the Council, I am satisfied that the applicant's continued use of FOI comprises a pattern of conduct amounting to an abuse of the right of access. I find, therefore, that the Council was justified in refusing the request at issue under section 15(1)(g) of the FOI Act on the ground that the request was vexatious and/or forms part of a pattern of manifestly unreasonable requests from the same requester.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse the applicant's request for records relating to the submission of TII on the specified planning matter under section 15(1)(g) of 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.

Richard Crowley
Investigator