Decision
Mr Y and Office of Public Works
From Office of the Information Commissioner (OIC)
Case number: OIC-148145-R9C2G6, OIC-147974-Y2S8H3
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Cite as: [2024] IEIC 148145
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Whether the OPW was justified in refusing, under section 15(1)(g) of the FOI Act, the applicant's requests for certain records relating to Castletown House on the ground that the requests were vexatious and formed part of a pattern of manifestly unreasonable requests
10 September 2024
Castletown House is a national heritage site operated by the OPW. On 27 November 2023, the applicant made two separate FOI requests for various specified records relating to Castletown House including records relating to meetings and communications between the OPW and SIPTU, a decision to change the opening hours, expenditure on security, procurement of the construction of a car park, the engagement of an independent facilitator, and communications relating to various aspects of vehicular access to the site. In two decisions, both dated 22 December 2023, the OPW refused the requests under section 15(1)(g) of the FOI Act, stating that the requests were vexatious and formed part of a pattern of manifestly unreasonable requests from the applicant, that amounted to an abuse of the right of access under the FOI Act. The applicant sought an internal review of each of these decisions on the same day, denying that the requests were vexatious or formed part of a pattern of manifestly unreasonable requests. He said that it appeared that the OPW was unwilling or unable to deal with the requests and that previous requests he had made had not been dealt with within the statutory deadlines, or at all. On 31 January 2024, the OPW affirmed both of its decisions. On 22 April and 8 May 2024, the applicant applied to this Office for a review of each of the decisions.
Due to the overlapping issues, I have decided to investigate both decisions together and to issue a single composite decision. I wrote to the applicant and provided him with details of the OPW's submissions setting out the reasons why it refused his requests under section 15(1)(g), and giving him an opportunity to comment. The applicant provided his comments to this Office on 23 August 2024.
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 the OPW and by the applicant and I have had regard to the correspondence between the parties set out above. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned only with whether the OPW was justified, under section 15(1)(g) of the FOI Act, in refusing the applicant's requests for various records relating to Castletown House.
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 from the same requester or from different requesters who, in the opinion of the head, appear to have made the requests acting in concert.
The section identifies three characteristics of a request that may lead to a decision to refuse a request; they are that the request is frivolous or is vexatious or forms part of a pattern of manifestly unreasonable requests. Any one of the three separate characteristics may, of itself, provide the basis for a refusal of a request. It is not necessary, for example, for the request to be both frivolous 'and' vexatious. Nevertheless, while they are three separate characteristics, they may also overlap. Therefore, what is frivolous may also be vexatious, and what is frivolous and/or vexatious may form part of a pattern of manifestly unreasonable requests.
This Office has previously identified a number of non-exhaustive factors as relevant in assessing whether a request may be categorised as frivolous or vexatious and we consider that they are equally relevant in determining whether 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 Grange judgment). The factors include, but are not limited to:
1. the number of requests made - are they considered excessive by reasonable standards
2. the nature and scope of the requests - are they excessively broad and varied in scope or unusually detailed?
3. the purpose of the requests, e.g. have they been made for their "nuisance value"; are they made without reasonable or legitimate grounds; and/or are they intended to accomplish some objective unrelated to the access process?
4. the intent of the requester - is the requester's aim to harass the public body?
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 (the Kelly judgment), 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 OPW's submissions
The OPW stated that the applicant submitted eight separate FOI requests on the subject of Castletown House between 25 August and 30 November 2023 which it said it amounted to nearly 10% of what the entire OPW would expect to receive over a full year. It said that four of the requests were received in the one day (27 November 2023). It said that, at the same time, the applicant also submitted four AIE (Access to Information on the Environment) requests, also on the subject of Castletown House. It said that each request (between FOI and AIE) contained multiple sub-sections, with a total of 59 separate categories of records sought which it considered to be excessively broad in scope. The OPW provided the details of each of these requests (both FOI and AIE) and what was sought by the applicant in each of them.
The OPW said that the number of FOI requests submitted by the applicant, combined with the wide scope of the records requested, was considered to be voluminous and that it would negatively impact on the small section dealing with these queries who were also managing a large volume of email correspondence, ministerial representations, formal complaints, press queries and AIE requests as well as the daily management of Castletown estate.
Furthermore, the OPW said that the person identified as paying for the applicant's internal reviews was one of the owners of adjoining land, which it said indicated that the applicant was not acting in good faith and that the requests were vexatious. It said that it appeared that the applicant was "acting in concert" with the landowner.
The OPW said that the requests formed part of a pattern of unreasonable requests from the applicant, and that the volume of requests amounted to an abuse of the right of access established by the FOI Act.
The applicant's response
In his submissions, the applicant strongly denied that his requests were vexatious or frivolous. Rather, he said that they were proportionate to his legitimate interest in the management of Castletown House, and that they were focused on obtaining specific information, on a matter of significant public interest. He said that he has no grievance with the OPW and that his requests have been made purely to obtain information, which he said is a legitimate use of FOI.
The applicant said that the OPW's arguments appeared to be mainly focused on the voluminous nature of the requests but that this was not cited as a reason for refusal. He said that it had been open to the OPW to refer to section 15(1)(c) of the FOI Act at initial decision or internal review stage, but that it did not and that this was the first time it had made the argument that the requests were excessively broad in scope. He said that the volume and variety of records sought reflected the complexity of the issues surrounding Castletown House and were proportional to his legitimate interest in obtaining comprehensive information.
The applicant disputed the OPW's claim that his requests represented around 10% of what it would expect to receive in a full year, citing the figures available on the OPW's disclosure log for 2024 and extrapolating from those. In any event, he said that the number of his requests as a proportion of the total received in the year was not a relevant consideration, because this would be dependent on the total requests in the year which could vary significantly from organisation to organisation.
The applicant said that the AIE requests that he made should not be a relevant consideration in this case, and that there was no prohibition on making both AIE and FOI requests for similar or related information. He said that the criteria for assessing requests under the FOI Act are distinct from those applied under the AIE Regulations, and that he has found that each system may result in the release of different types of information. He said that the ability to pursue both avenues reflects the complexity of the subject matter and his genuine interest in obtaining comprehensive records pertaining to Castletown House.
In relation to the submission by the OPW that one of the landowners made the payment for the applicant's internal reviews and that this suggested he was not acting in good faith and was acting in concert with the landowner, he strongly refuted this. He said that he does have a professional acquaintance with one of the directors of the companies that owns the land and for practical reasons he requested that the internal review fee be paid by them on his behalf, as he wasn't in a position to make electronic payments at that time. He said that there was nothing inappropriate about this arrangement and that he never sought to hide the identity of the person making the payment. He said that he has confirmed with the landowner that he hasn't made any FOI or AIE requests himself and he rejected the suggestion that they were acting in concert.
In terms of motivation, the applicant said that he was driven solely by his own interest in the management and operation of Castletown House. He said that he was seeking the information for personal use in a professional capacity for possible future planning submissions, similar to how a journalist might seek information to inform their work. He said that his pursuit of these requests is legitimate, appropriate, and conducted in accordance with the provisions of the FOI Act.
My Analysis
The FOI Act affords important access rights to records held by FOI bodies. Indeed, in performing any functions under the Act, section 11(3) provides that 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 vexatious. However, the Act also 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. It seems to me that the OPW's rationale for refusing the requests under section 15(1)(g) can be summarised into three main points: that the applicant has made an excessive number of FOI requests and AIE requests over a relatively short period of time, that the individual requests themselves are voluminous, and that the payment for internal reviews being made by a specific third party suggests that he is acting in bad faith and in concert with another party.
Before addressing these arguments, I think it is worth pointing to the context in which the FOI requests were made. Since land adjoining Castletown House changed ownership in 2022, access to the site has been the subject of significant controversy, protest and media coverage. In response to high levels of interest by members of the public in the situation at Castletown House, the OPW took the step of establishing a dedicated page on its website to provide a centralised repository of relevant information. It has published extensive information on the website, including records that were released further to various FOI requests. This proactive publication of information is certainly in keeping with the spirit of the FOI Act and the OPW may be able to point to the availability of specific records on its website in response to FOI requests, or indeed there may be no need for a member of the public to make the request in the first instance.
I will consider the number of requests, and the nature and scope of those requests, together, as it seems to me that, in this instance, the two are interlinked. The applicant made eight FOI requests and four AIE requests in just over three months, including four in one day (which includes the two requests at issue in this review). The applicant has disputed the OPW taking into account the AIE requests when making a decision on the FOI requests. Having regard to the Kelly judgment, it seems to me that the AIE requests form part of the wider context and I am satisfied that the OPW, and this Office, can reasonably take these AIE requests into consideration. Each request has a number of sub-parts, and indeed many of the sub-parts themselves contain multiple different categories of record sought. I note the OPW's position that the requests are voluminous and that to process all of them would require significant resources and that this could potentially have a negative impact on the relevant team. However, the applicant has submitted, and I am inclined to agree, that if this was the concern of the OPW, it was open to it to invoke section 15(1)(c) which is the provision which essentially allows an FOI body to refuse an FOI request when the number and nature of the records sought is such that to process it would cause a substantial and unreasonable interference with the work of the FOI Body. It is important to note that section 15(4) provides that an FOI request cannot be refused under section 15(1)(c) unless the FOI body has first assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under that section.
In considering the refusal under section 15(1)(g), however, it seems to me that I have to consider the volume and scope of these requests not with reference to whether they are voluminous and would disrupt the work of the OPW or a section within the OPW, but whether they are excessive by reasonable standards. In considering this, I am of the view that the context in which the requests were made can and should be taken into account. I understand that in the period from end August to end November 2023, when the 12 requests were made, significant change occurred in terms of public access to Castletown House and the surrounding parklands which led to, among other things, public meetings and protests being held, various community and campaign groups getting involved or becoming established, members of the local authority getting involved, media reports, and the relevant Minister meeting with Oireachtas members. There was clearly significant interest from members of the public in matters relating to Castletown House and the OPW's engagements and actions in respect of the site. Having regard to the principles set out in section 11(3), it seems to me that while the number of requests was high, and the records sought in each one was not insubstantial, given the legitimate interest by the public in the subject matter, it seems to me they were not, by reasonable standards, excessive. The OPW made reference to the number of requests as a proportion of overall requests it normally receives in a year; it seems to me that when a particular issue becomes a source of significant attention, it is not unusual or reasonable for it then to become the subject of an increasing number of FOI requests.
The OPW did not submit that the applicant was making the requests for nuisance value or with a view to harassing it. It did, however, state that in its view he was not acting in good faith and that he was acting 'in concert' with another party. The question of whether individuals appear to be acting in concert is generally not straightforward. The Act allows an FOI body to refuse a request under section 15(1)(g) where it "-¦ forms part of a pattern of manifestly unreasonable requests from -¦ different requesters who, in the opinion of the head, appear to have made the requests acting in concert". In other words, an FOI body is entitled to refuse the request if it reasonably believes that the requester appears to be acting together with another requester in making a series of manifestly unreasonable requests.
I am cognisant of the fact that under section 22(12)(b) of the Act, the onus is on the OPW to justify its refusal, and not on the applicant to show that he was not acting in concert with another requester. I also note that the Act is silent on the type of factors that might be regarded as relevant when considering this matter. In my view, it would be extremely difficult to attempt to identify a list of factors that one might have regard to in all such cases. Instead, it seems to me that regard must properly be had to the particular circumstances arising in the case in question.
In this instance, the applicant's internal review fees were paid by a third party who is, as I understand it, a director of a company which owns land adjacent to Castletown House. The applicant's position is that he has or had a working relationship with this person and that the payments were made on his behalf purely as a matter of convenience at a time when he couldn't make electronic payments himself. No evidence has been provided and nor has it been suggested by the OPW that this individual has also made FOI requests so I cannot find that different requesters have been acting in concert.
In addition, the OPW has asserted that this connection with the third party suggests that the applicant was not acting in good faith. The fact that there is some kind of connection, whatever that connection looks like, between the applicant and a third party stakeholder, is not, in my view, sufficient to conclude that the applicant was acting in bad faith. This Office cannot take into account what use may be made of records once released, as release of information under FOI is regarded, in essence, as release to the world at large. No other evidence has been provided to indicate that the applicant was acting in bad faith.
On balance, for the reasons set out above, while I appreciate that the OPW may be frustrated by the number of FOI requests, or struggling to find the adequate resources to process them, I am not satisfied that it has justified its refusal of the requests under section 15(1)(g) of the FOI Act on the basis that the requests were vexatious or formed part of a pattern of manifestly unreasonable requests from the applicant, that amounted to an abuse of the right of access under the FOI Act. In all of the circumstances, therefore, I consider that the most appropriate course of action to take in this case is to annul the OPW's decisions on the applicant's two FOI requests and to remit the matters to the OPW to consider the requests afresh and to 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 OPW's decisions in respect of either request.
I encourage the OPW to engage with the requester prior to making a fresh decision and, as I have explained above, while the FOI Act demands that FOI bodies meet very high standards in dealing with requests, this Office also takes the view that the legislation also assumes reasonable behaviour on the part of requesters.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the OPW's decisions to refuse the applicant's FOI requests under section 15(1)(g) of the FOI Act. I direct it to conduct fresh decision-making processes on the applicant's two FOI requests.
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.
Emer Butler
Investigator