Decision
Ms K and Tusla
From Office of the Information Commissioner (OIC)
Case number: OIC-143368-K4M0W3, OIC-143445-S4L8J6
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URL: http://www.bailii.org/ie/cases/IEIC/2024/143368.html
Cite as: [2024] IEIC 143368
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Whether Tusla was justified under section 15(1)(g) of the FOI Act in refusing the applicant's requests for certain records relating to her children's care on the grounds that her requests are vexatious and/or form part of a pattern of manifestly unreasonable requests
16 May 2024
This review concern's Tusla's decision to refuse two FOI requests made to it by the applicant seeking access to records held involving minutes of meetings and conferences concerning the care arrangements of her children. In the circumstances, I consider it appropriate to summarise the requests and the ensuing decision making process, as follows:
The applicant's request of 18 September 2023 sought records including minutes of meetings, various reports from GPs and Court appointed assessors, referrals to Tusla and booklets from Child Protection Conferences held in respect of the applicant's children. In her second request made on 3 October 2023, the applicant sought to have a peer review report altered under section 9 of the FOI Act. In her application, the applicant set out that she considered that statements provided by the father of her children were inaccurate and misleading. On 10 and 11 October 2023 respectively, Tusla refused both requests under section 15(1)(g) of the FOI Act. Tusla outlined that it believed that the frequency and pattern of the requests submitted could be deemed to be an abuse of the right of access. The applicant sought an internal review of Tusla's decisions on 10 and 13 October 2023 respectively. On 25 and 27 October 2023, Tusla issued its internal review decision on both reviews. Tusla affirmed both original decisions, stating that the frequency and nature of requests from the applicant was of concern to it. Tusla also stated that it had asked the applicant to avail of other options for seeking information as opposed to through FOI, it stated that it had offered the applicant the opportunity to meet with a member of the social work team involved in her children's care where specific concerns could be addressed, but that she had not contacted Tusla in regard to setting up same.
The applicant applied to this Office for reviews of Tusla's decisions on 25 October 2023.
During the course of the review I wrote to the applicant and provided her with details of Tusla's submission setting out the reasons they refused both requests under section 15(1)(g) of the FOI Act. The applicant provided her comments in return.
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 Tusla'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 Tusla as outlined above and to the correspondence between this Office and both parties on the matter.
The scope of this review is solely concerned with whether Tusla 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.
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 any other parties.
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 in Grange 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 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.
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.
Tusla's submissions
In its submissions, Tusla states that it was determined that the two requests in question were deemed to be frivolous or vexatious due to the fact that it had received numerous FOI requests and requests for internal reviews from the applicant. It states that it considered the applicant was not using the FOI process in the manner that it is intended and cited an email from the applicant to the FOI Officer, in which the applicant apologised, but requested a review of the FOI request related to her children's booklets from a Child Protection Conference (CPC) and stated that she couldn't use the other route as Tusla was engaging with a man practicing parental alienation tactics. Tusla maintains that although the applicant would attend case conferences in relation to her children that the applicant would not contribute to discussions or raise any matters of concern she held. It states that this would have been the correct forum for her to give and receive information. It states that the practice following the case conferences would be to circulate minutes to all attendees including the applicant. It argues that notwithstanding this, the applicant chose the FOI route to access records of submissions for these case conferences and to raise her objections to the content of the submissions, it argues that this involved significant investment of key and scarce time of administrative staff and social workers who had to seek responses to the issues raised, whereas matters could have been resolved within the case conference structure. Tusla also noted that the behaviour by the applicant often occurred following a case conference or as a result of an implementation of an agreed action at a case conference.
Tusla also states that it attempted to facilitate different avenues for communication with the applicant to address grievances which were raised, such as engaging with social work or Tusla staff through established mechanisms to assist with any questions she might have relating to the care of her children and to provide an opportunity for information sharing. It says the applicant did not avail of this offer bar once meeting with an Area Manager and Regional Chief Officer to discuss one report.
Tusla provided a chronology of all FOI requests received by the applicant, it noted that it received 16 FOI requests and 8 internal review requests from June 2021 - October 2023, in addition to 83 individual emails to the FOI Officer and that the applicant would have received 90 emails in return. It argues that this along with requests for further clarification has placed a significant burden on the resources of the FOI and social work departments. Tusla considers that the behaviour of the applicant in terms of the number and nature of the requests and subsequent contact seeking clarification reached the threshold for determining a pattern of manifestly unreasonable requests which amounted to an abuse of the right of access. It further argues that the requests submitted have had the following impact:
- Increased workload: Tusla states that staff responsible for FOI requests have seen a significant increase in their workload due to the need to process responses for the applicant.
- Strain on staff morale: It argues that the increased workload and pressure to respond to FOI requests promptly has led to stress among staff members, particularly as they are already managing other requests from service users, it states that staff already handle complex requests and the nature of the records can have an impact on health and wellbeing
- Reputational considerations: Finally, it maintains that delayed decisions are deemed a refusal and that this impacts Tusla's reputation in the eyes of the public and the media as the Information Commissioner publishes reports naming organisations. Transparency and responsiveness in handling requests are essential to maintaining trust and credibility.
Tusla argue that overall dealing with a frequent FOI requester requires careful management of staff and resources to ensure that requests are handled efficiently, effectively and in accordance with legal requirements and organizational policies. It states that in this instance the applicant will only deal with Tusla through the FOI mechanism which is not best practice.
The Applicant's submissions
In her submissions to this Office, the applicant stated that she has an issue with Tusla denying her information as set out in their policy, she states that prior to any Child Protection Conference (CPC) Tusla had advised that she as a parent would be provided with a written copy of information to be shared, but that she received none, she states that she made an FOI request for the information on foot of this. She further expressed that she was of the understanding that all people in attendance at the CPC would be disclosed in advance. The applicant argues that two additional people attended and that information shared by one of the attendees was not disclosed to her, prompting the applicant to submit an FOI request. The applicant has expressed a grievance with one of the appointees to the CPC and stated that this individual lied about his qualifications and that certain information he shared during conference was inaccurate resulting in inaccurate minutes which the applicant applied to have rectified through FOI. She states that this man was unqualified and unvetted and that Tusla allowed him dictate when CPC's are held. She states that she was forced over and over to prove his lies and denied information to cover up failings.
As part of her submissions the applicant provided supplementary documentation in support of her arguments. The documents in question concerned the information which the applicant had described as inaccurate and included correspondence with Tusla in relation to amending inaccurate information in records. The information in question mostly related to observations or statements which the applicant considered contrary to her own views on the matter.
The applicant also provided evidence of a complaint which she had made to the Ombudsman in respect of the court appointed assessor being referred to as a social worker in relevant minutes, the applicant has disputed opinions given during the course of the Child Protection Conferences by the individual in question and also by her daughters' father in the duration of the Conferences. The Ombudsman partially upheld the applicant's complaint on the matter.
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 legislation assumes reasonable behaviour on the part of requesters.
From my consideration of the matter, it is clear that the applicant currently has grievances with the manner in which certain conferences were held and the way in which certain minutes were recorded. In the earlier FOI requests which were submitted in 2021 and 2022, the applicant expressed genuine concern for the manner in which her children have been treated and requested information on referrals to Tusla. In her more recent FOI requests, the applicant has expressed dissatisfaction with the opinions shared by other parties who were also in attendance at these conferences, and has pursued avenues of complaint with the Ombudsman in relation to the court appointed assessor. Through her use of FOI, she has sought to have minutes of meetings amended to reflect her disagreements through section 9 of the FOI Act, she has also sought access to information relating to these meetings such as booklets and information. Tusla have stated that all such information would have been circulated to the applicant in advance of the meetings and that the case conference forum is for exploring any matters of concern, such as disagreements. Notwithstanding this, it is not the role of this Office to consider the validity of the applicant's grievances, but to assess whether or not the behaviour of the applicant in terms of the manner of her pursuance of records through FOI is reasonable, or whether it is frivolous or vexatious.
Having carefully considered the submissions from both parties in this case, it is evident in my opinion, that the applicant has had a substantial number of communications with Tusla over the course of a number of years in relation to a number of issues, more recently concerning grievances on the case conferences, attendees at same and views and opinions shared in this forum. I also note from the applicant's submissions that it appears the she was utilising FOI recently to express her grievances with the court appointed assessor's credentials and views. I note from Tusla's submissions that there have been attempts to establish alternative communication avenues but that these have not been successful. From Tusla' submissions it appears that contact with the applicant has placed a significant burden on Tusla in term of time and resources required to deal with these matters over a prolonged period. 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. It is of note that Tusla said that it had aimed to establish better forums for dealing with the applicant's grievances through the social work department and further that information provided during case conferences was made available to the applicant previously. On balance, I consider that the applicant's continued use of FOI as a method of dealing with grievances comprises a pattern of conduct amounting to an abuse of the right of access. I find therefore, that Tusla was justified in refusing both requests at issue under section 15(1)(g) of the FOI Act 2014.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Tusla's decision to refuse both of the applicant's requests relating to:
- Amendment of minutes under section 9
- Records relating reports from GPs and Court appointed assessors, referrals to Tusla and booklets from Child Protection Conferences.
Under section 15(1)(g) of the FOI Act 2014.
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.
Rachael Lord, Investigator