Decision
Mr X and Coimisiún na Meán
From Office of the Information Commissioner (OIC)
Case number: OIC-150403-P3B6S6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150403-P3B6S6
Published on
Whether the Commission was justified in refusing, under section 15(1)(g) of the FOI Act, the applicant’s request for records concerning his interactions with its staff on the ground that the request was vexatious
27 January 2025
The FOI request that is the subject of this review has its background in previous engagements the applicant had with the Commission, and the nature and manner of those engagements. On 15 April 2024, he submitted a detailed, multi-part request to the Commission. He sought;
• transcripts and audio recordings of his phone calls with various members of the staff of the Commission,
• the names of staff members he met with,
• the names of staff members who had accessed his personal data,
• the names of all people in the homes of any staff members working from home who may have had access to his personal data, including children and friends
• the names of staff members who made statements concerning their telephone exchanges with him,
• the names of staff members who were present when he had an engagement with a named staff member,
• details of why the named staff member failed to acknowledge his emails
• the names of staff members (and their positions held) who decided that there should be no further engagement with him by phone
• The names of staff members who felt threatened by him and their statements confirming same,
• Documentation to prove information he had been given regarding the alleged running of a song contest
• Documentation to support allegations made of interactions he had regarding the broadcasting of his songs.
Having received no decision on his request, the applicant sought an internal review of the Commission’s deemed refusal of his request on 14 May 2024. On 12 June 2024, the applicant contacted this Office about the Commission’s failure to reply to his request. We asked the Commission to inform the applicant of its effective position on the request.
In correspondence with this Office, the Commission said that it had not issued a decision to the applicant because of its concerns about his engagements with its Office over the course of the previous year. On 8 July 2024, the Commission wrote to the applicant outlining its response to the FOI request. It refused various parts of the request under section 15(1)(a) of the FOI Act on the ground that no such records exist, including the request for transcripts and audio recordings and the names of all people who read or viewed the applicant’s personal information. It refused other parts under 15(1)(g) of the Act on the ground that those parts were vexatious, including the request for the names of, and statements made by, staff members. It granted partial access to one record in respect of his request for documentation regarding the alleged running of a song contest, with certain information redacted under sections 37(1) and 32(1)(a)(iii) of the Act. On 9 July 2024, the applicant applied to this Office for a review of the Commission’s decision.
During the course of the review, the Commission said it considers section 15(1)(g) of the Act to apply to the entirety of the applicant’s request. On 16 December 2024, this Office’s Investigator wrote to the applicant with details of the submissions made by the Commission on the matter and invited him to make his own submissions. No reply has been received from the applicant to date.
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 outlined above. I have decided to conclude this review by way of a formal, binding decision.
It is important to note that a review by this Office is considered to be de novo, which means that in this case, it is based on the circumstances and the law as they pertain at the time of this decision and is not confined to the basis upon which the Commission reached its original decision.
Accordingly, having regard to the revised position of the Commission as set out in its submissions and as notified to the applicant, this review is concerned solely with whether the Commission was justified in refusing the entirety of the applicant’s request under section 15(1)(g) of the Act on the ground that the request is vexatious.
Section 25(3) of the FOI Act requires this Office to take all reasonable precautions in the performance of its functions to prevent the disclosure of exempt information or matter that, if it were included in a record, would cause the record to be an exempt record. This means that in this case, while I have had regard to the full details of the submissions received from the Commission, I believe I must refrain from including all of those details in this decision. I can say, however, that I am satisfied that the description I have given below of the Commission’s submission is not in breach of section 25(3). I am also satisfied that the applicant has been given a clear description of the basis on which the Commission considers his request to be vexatious and that he has been given a fair and reasonable opportunity to provide his response to the position taken by the Commission on his request.
Section 15(1)(g) of the FOI Act provides for the refusal of a request where the FOI body considers the request to be frivolous or vexatious or to form 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. The factors include:
1. The actual numbers 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 is important to note that this list is non-exhaustive. Moreover, it is not necessary for all of the above factors to be present before a request can be refused under section 15(1)(g). This Office also considers that it is appropriate to consider the request concerned in the context of other requests made to the FOI body and/or 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 grievance, as well as the context of the FOI requests 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 making of a request, motive can be 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 “there 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”.
The Commission’s Submissions
In its submissions to this Office, the Commission described what it considers to be a challenging set of interactions between the applicant and members of its staff prior to and after he made his FOI request. It said the applicant’s behaviour resulted in its termination of telephone contact with him, and in it refusing to provide him with any details of its staff because of the abuse and threats levelled at staff whose identities became known to the applicant. It said that interactions with the applicant have necessitated contact with the An Garda Síochána and intervention of its security staff following his attendance at its offices.
The Commission said that while there was only one FOI request from the applicant, the nature of the request was one of grievance and pursing personal grievances against its staff members. It said this is evidenced from the previous interactions between the Commission and the applicant on non FOI-related matters. It said its position is that the applicant’s interactions with it evidences a pattern of behaviour which amounts to an abuse of process. It said that given the applicant’s behaviour, it is possible to argue that he was unwilling (whether intentionally or otherwise) to co-operate with it and it considers this to amount to bad faith on his part. It said this is most acutely evidenced by the applicant’s unannounced visit to its offices to confront staff after it had tried to work with him through the complaints process and customer charter process to deal with his original and evolving concerns.
The Commission said the applicant’s behaviour is better characterised as having an illegitimate or dishonest purpose with furtive design or ill will. It said that the history of its interactions with the applicant and his subsequent actions on foot of receiving or discovering information about the Commission and its staff demonstrates that whether he intended to or not, he was engaged in the pursuit of his grievances with the Commission.
The Commission added that it is legally obliged to protect its staff. It said its demonstrable concerns were and are for the safety and welfare of its staff, the applicant and also the work and functioning of the Commission. It said it considers the FOI request made to be an abuse of the right to access records. It said the request, is focused on identifying members of staff, whether looking for the personal details, their families’ details, or non-existing records in the form of statements and declarations from the staff. It said it can only presume that the applicant is not in agreement with how the Commission has had to manage his interactions with its staff. It said his failure to get the information he wants, which evolves
from interaction to interaction, has now led to the use of the FOI process on his part to access records which, in its view, are necessary to identify individuals who may then be further targeted by the applicant as past behaviour has shown to happen. It said it considers the purpose of the applicant’s request to be directed at an objective unrelated to the access process.
On the matter of its engagements with the applicant, the Commission said that following months of communications through telephone calls, emails and an unannounced
arrival at its Offices to confront staff members about his grievances, the applicant made his request on 15 April 2024. It said he first made contact in April 2023 in relation to concerns about his music not being played on air by radio stations, followed by a number of phone calls and correspondence between April 2023 and August 2023. It said he made a number of complaints about the Commission and its staff in August 2023. It said it informed him in September 2023 that staff members would no longer be taking his phone calls and that he could contact the Commission by email or post. It said it concluded the complaint through its Customer Charter in September 2023 but contacts continued by email and personal visits.
My Analysis
I am in no doubt that the applicant’s FOI request in this case was driven by his dissatisfaction, or grievance, with the manner in which the Commission dealt with him and his pursuit of that grievance. The fact that an FOI request might be driven by a particular agenda does not mean that the request is necessarily vexatious. For example, I see nothing wrong with a requester seeking access to records that the requester believes might assist in the pursuit of a grievance. However, that is entirely different to a situation where a requester seeks to use the FOI process itself as part of a strategy for prolonging a grievance with an FOI body, particularly where the grievance has already been considered and adjudicated upon. It is also important that where a requester has a grievance with an FOI body, the FOI process should not be used as a means of personalising disputes with individual staff members.
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 request. 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 the requesters.
Having considered the nature of the request made in this case, and having regard to the background against which the request was made as described by the Commission, it seems to me that the purpose of the request in this case was not simply to allow the applicant to obtain information held by the Commission that might serve to allow him to form a view as to whether or not he had a legitimate grievance. Rather, I consider that the request was made in pursuit of the applicant’s personal grievance with the Commission’s staff members. I note, for example, that the request is focused on identifying members of staff, whether looking for the personal details, their families’ details, or seeking statements and declarations from the staff justifying their interactions or comments.
As noted above, he applicant has been given an opportunity to the substance of the Commission’s submissions and no response has been received. Having regard to the details of the Commission’s submissions to this Office, the nature of the information sought, and to the chronology and nature of his engagements with the Commission leading up to his FOI request, I am satisfied that his interactions with the Commission form part of a pattern of conduct that amounts to an abuse of process and an abuse of the right of access. In the circumstances, I find that the Commission was justified in refusing the applicant’s request under section 15(1)(g) of the Act on the ground that it was vexatious.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Commission’s decision to refuse the applicant’s request under section 15(1)(g) of the 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.
Stephen Rafferty
Senior Investigator