Decision
Mr X and Carlow County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-141895-H4H7Z0
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URL: http://www.bailii.org/ie/cases/IEIC/2024/141895.html
Cite as: [2024] IEIC 141895
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Whether the Council was justified, under section 15(1)(g) of the FOI Act, in refusing the applicant's request for records relating to an independent review of planning matters concerning a specific site on the ground that the request forms part of a pattern of manifestly unreasonable requests
29 April 2024
In December 2018, an independent review was carried out concerning planning and governance issues arising in relation to the development of a site in Carlow. I understand that the applicant in this case is acting on behalf of a third party objector to the development concerned. In a request dated 1 December 2022, the applicant sought access to various records relating to the independent reviewer's report. The applicant referred to a statutory fee shortfall referenced in the report and also referred to references in the report to meetings between auditors and Council officials in 2010 and 2011. He requested all records relevant to the loss of statutory monies at the site in question. He also sought copies of the auditor's working notes, as well as the following:
- A copy of all the Local Government Auditor (LGA)'s records from Carlow Town or County Council files to support the Independent Reviewer's report, and the "current location of these public records".
- A copy of the LGA's "documented advice" and other records held by Carlow Town or County Council relating to how a shortfall identified by the LGA occurred.
Records relating to "any details or discussions of the recorded loss" referred to in the report.
- A copy from Carlow Town or County Council files of the "working notes", or other records, made and/or submitted by the LGA, or by the Manager, in relation to the "recovery, rectification or replacement of the established loss", including legal advice sought or received.
On 2 February 2023, the Interim Chief Executive of the Council wrote to the applicant. He referred to previous correspondence dated 21 November 2022 from the Council to the applicant, relating to the subject matter of the FOI request and to the independent review. I understand that the letter of 21 November 2022 set out an offer of "a Solatium" (which I understand to be compensation) from the Council and a proposed agreement form to be completed by the third party concerned. The Interim Chief Executive essentially stated that as no response had been received by the deadline of 30 November 2022 to the proposals set out in the letter, the Council had proceeded as previously indicated. That is, it had closed its file on the matter and it would not be engaging in any further correspondence including handing related FOI requests. The applicant sought an internal review and the Council reaffirmed its position. The applicant subsequently sought a review of the matter by this Office. This Office found the Council had failed to process the applicant's FOI request in line with its obligations under the FOI Act and remitted the matter back to the Council to make a fresh decision (Case OIC-137740 refers).
On 2 August 2023, the Council refused the request under section 15(1)(g) of the FOI Act on the ground that the request forms a pattern of manifestly unreasonable requests from the applicant. The Council said that this is the fifty-seventh FOI request received in relation to the site since circa 2008. The Council noted that in 2015 and 2016 the Information Commissioner had affirmed decisions it made under section 15(1)(g) to refuse previous requests from the applicant related to the site in question. The Council said it considers the continuous request for records under FOI is an approach being used by the applicant to pursue matters about the site notwithstanding that an independent review of matters concerning the site had been conducted. The Council said that the records sought by the applicant, or a variance of same, have formed part of previous requests for records and are therefore considered to be repetitive in nature. The Council listed ten such examples of previous requests dating from 2012 to 2018. On 8 August 2023, the applicant requested an internal review. In a decision dated 28 August 2023, the Council affirmed its original decision. On 29 August 2023, the applicant applied to this Office for a review of the Council's decision.
During the course of this review, the Investigating Officer provided the applicant with details of the Council's submissions where it outlined its reasons for refusing the request under section 15(1)(g). The Investigating Officer invited the applicant to make submissions on the matter, which he duly did.
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 submissions made by both the applicant and the Council. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Council was justified in its decision to refuse the applicant's request under section 15(1)(g) of the FOI Act on the ground that the request forms part of a pattern of manifestly unreasonable requests from the applicant.
In his submissions to this Office, the applicant raises concerns that the Council was given what he describes as a second chance by this Office when we remitted his request back to the Council in case OIC-137740. While I do not intend to revisit the decision taken in that case, our decision in that case explains the rationale for directing the Council to conduct a fresh decision-making process in relation to his FOI request. Essentially, as the decision in case OIC-137740 explains, the Council had not dealt with the request in the first instance.
A request may be refused under section 15(1)(g) if the public body considers that the request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests from the same requester. 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 made: 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 the public body 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 in Kelly 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 in Grange 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 applicant's submissions
In his submissions to this Office, the applicant outlined numerous matters relating to both 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 his submissions in full, I can confirm that I have had regard to them for the purpose of making this decision.
In summary the applicant contends that the 10 FOI requests he made since the Independent Review was completed "did not contain or deliver" the records sought in this case. The applicant said that section 15(1)(g) must not become a vehicle for a public body refusing to submit records on the basis that having sought records before and where that request was refused, a record cannot be pursued. He contends that the Council should simply release the records sought in this case or say that the records do not exist.
The applicant said he is concerned that the Council has not released all relevant records that might demonstrate loss of public monies in regard to planning and building at the site in question. The applicant stated "We seek statutory and proper records of administrative care of public money". He said the independent reviewer reported the loss of public money and questions if the matter of recovery was discussed and recorded when the Local Government Auditor (LGA) and the manager of the Council met at least 4 times in 2010 and 2011, as referenced in the independent reviewer's report. The applicant also said that he is not in possession of a copy of the independent reviewer's report submitted to the Council on 17 April 2019. The applicant further added that he understands that "it may be that no further alterations were made between 17 April 2019 and August 2019" but that the review report he received dated 8 August 2019 was signed as "December 2018."
In his submissions, the applicant also said that the terms of reference of the independent review were changed by the independent reviewer without his consent and that the issues arising will not be discussed by the Council. The applicant also made reference to amendments suggested by the Council to the independent reviewer.
In summary, it appears the applicant considers that public records are being withheld which can demonstrate how public funds were managed by the Council in relation to planning and development matters at the specific site.
The Council's submissions
In its submissions to this Office, the Council said that the planning matters for which the applicant has submitted approximately 57 FOI requests to date has been ongoing since circa 2006. It said, in an effort to resolve the issues an independent reviewer was engaged to carry out a review of all planning and governance issues in relation to same. As part of this process the reviewer met with the applicant and also reviewed documents submitted by him during the review process. It said the final review report was issued on 7 August 2019 to the applicant and the individuals whom the requester represents and to the then Minister for Housing, Planning and Local Government.
As noted above, the applicant contends that changes were made to the Terms of Reference for the Independent Review that were not agreed with him. He also contends that the report by the independent reviewer was changed following the Council's intervention. The Council said that it suggested amendments to the review on a number of items that according to the Council could have potential legal exposure for the Council. It further added that none of the amendments suggested altered the substantial opinions or findings on the report. The Council said that the requester has the final report and that in addition the applicant received a redacted copy of this report before any amendments were made. It stated that it is not in possession of any other review reports. The Council said it informed the applicant of the above in a letter dated 15 November 2019. The Council also provided this Office with of a copy of its correspondence with the applicant dated 13 December 2019, wherein it provided the applicant with a redacted copy of correspondence it had with the Independent Reviewer about suggested amendments to the review report. In its correspondence with the applicant, the Council said that as this was an independent review any decision on its suggested amendments was a matter for the independent reviewer.
The Council said that since the review report was issued ten freedom of information requests have been generated by the applicant seeking records that either have been requested previously or are a variance of previous requests submitted prior to and post the review report. It said, the records being requested in any of the FOI requests received to date if they existed have been made available. The Council said that in other instances, there have been no records available, and the applicant has been advised accordingly through the freedom of information process. The Council stated, even though the applicant was a participant in the review process, he has generated ten FOI requests to date since the independent review report issued. The Council said that it dealt with these requests and ultimately came to the view that the request in this case forms part of a pattern of manifestly unreasonable requests in relation to the site in question.
The Council said that the issues of concern to the applicant have been the subject of FOI requests over various periods for approximately eighteen years. It said that any information that can be made available to the applicant in line with the provisions of the Freedom of Information legislation has been provided. The Council said that it is not possible for it to continuously sustain the resources required to deal with freedom of information requests received from this requester pertaining to the same subject matter that in essence will not yield any new or additional information for the requester. It said that on the basis of the number of FOI requests received, the repetitive nature of the requests and that an independent review has been carried out, the Council consider that it was appropriate to refuse the request received on 1 December, 2022 in accordance with Section 15(1)(g) of the Act.
In regard to the sequencing of the requests since 2018, the Council said that while they have been generated based on the independent review, they inevitably lead back to the period prior to the independent review. In its submissions to this Office, the Council referred to a request from the applicant dated 17 August 2020, "wherein the requester states in the first paragraph 'Further to our FoI query of last week (13/08) we have reviewed a further entry [made by the independent reviewer] that we cannot accept and we now seek further CTC/CCC records under the FOI Act'. The Council said that the statement '-¦ we have reviewed another entry that we cannot accept -¦.' is considered to potentially indicate that there will continue to be 'scrutiny' of the Review Report entry by entry that will continue to generate further FOI requests seeking records that do not exist or have been previously provided due to the applicant's dissatisfaction with the completed Review Report. It said the Review Report was undertaken to deal with the issues raised by the applicant over the years as can be seen from the information outlined in the Terms of Reference. At this stage the Council consider that there is nothing further to be gained by submitting requests under the Freedom of Information legislation. The Council contend the FOI legislation is being used by the applicant as an approach to pursue matters notwithstanding that an independent review was conducted and a Review Report completed. In addition, it said the Review Report was based on all available files in the possession of the Council on the particular subject matter. It is the opinion of the Council that the FOI requests generated prior to and since the Review Report are repetitive in nature and as such the existence or otherwise of records being continuously requested has at this stage after a period in excess of 10 years been exhausted.
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.
I acknowledge that the independent review that is the subject of this request was carried out in 2018, after this Office affirmed previous decisions by the Council that the applicant's requests form part of a pattern of manifestly unreasonable requests from the same requester. The terms of reference for the independent review included all planning applications in respect of the development at the site, that commenced over 20 years ago, and all complaints and correspondence from the applicant and the party he represents. It also included a review of all FOI requests made by the applicant, and/or the party he represents, in respect of the site in question, a review of the applicant's complaint to the Ombudsman in respect of the development and the Council's response of November 2008 to same and a review of the applicant's complaints to An Bord Pleanala in 2009 and 2010.
Therefore, it is not unreasonable to expect that requests for information arising from the independent review may encompass issues raised in the reviewer's report that date back over many years.
Notwithstanding this, one of the criteria to be taken into account when considering whether a request is frivolous or vexatious is whether the request forms part of a pattern of conduct that amounts to an abuse of process or an abuse of the right of access. A pattern of conduct requires recurring incidents of related or similar requests on the part of the requester. The time over which the behaviour is committed is also a relevant factor. The outcome or cumulative effect of the requests is a relevant consideration. It is 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.
While the applicant has raised a number of issues during the course of this review, the primary focus of his FOI request of 1 December 2022 concerns comments in the Independent Reviewer's report about a shortfall of statutory fees. In this regard, the report notes the matter of statutory fees has been a recurring theme in submissions to Carlow Town Council, An Bord Pleanala, the Local Government Auditor, the Ombudsman and in FOI requests. 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 the importance to clarify the use of public monies by the Council and in his view, the lack of clarity in the information released by 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(1)(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, in my view it seems evident that the applicant is continuing to engage in a pattern of submitting requests with a view to pursuing a dispute about the site at issue that has been ongoing for many years. Having regard to the number of requests submitted by the applicant relating to the same subject matter and to the similarities in the subject matters of the requests made before and after the independent review report was completed, I am satisfied that the Council was justified in refusing the applicant's request in this case on the grounds that it forms part of a pattern of unreasonable requests from the same applicant.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council's decision to refuse the applicant's request for records related to an independent reviewer's report into planning and other matters at site in question under section 15(1)(g) of the FOI Act.
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