Decision
Mr Z & The Department of Employment Affairs and Social Protection
From Office of the Information Commissioner (OIC)
Case number: 180169
Published on
From Office of the Information Commissioner (OIC)
Case number: 180169
Published on
Whether the Department was justified in its decision to refuse access to records relating to the applicant under section 15(1)(g) of the FOI Act on the ground that the request was considered to be vexatious
9 August 2018
On 8 January 2018, the applicant submitted a request to the Department for copies of medical certificates he had submitted up to August 1995 and a copy of the computer records showing that he had submitted them. As the Department failed to issue a decision on the request, the applicant sought an internal review of the deemed refusal of his request on 13 February 2018. As the Department failed to issue an internal review decision, the applicant sought a review of the matter by this Office. Following contact from this Office, the Department notified the applicant that it was refusing the request under section 15(1)(g) on the ground that the request was vexatious. On 28 April 2018, the applicant confirmed that he wished the review of the Department's refusal of his request to proceed.
I have decided to conclude this review by way of a formal, binding decision. In concluding this review, I have had regard to the correspondence between the applicant and the Department as outlined above, and to the correspondence between this Office and both the applicant and the Department on the matter.
This review is concerned solely with the question of whether the Department was justified in its refusal to grant the applicant's request under section 15(1)(g) of the FOI Act on the ground that the request is vexatious.
Section 15(1)(g) provides that a public 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 whom appear to have made the requests acting in concert.
This Office considers that it is entitled, by virtue of section 13(4) of the FOI Act, to take into account the motive of a requester when considering whether a request is frivolous or vexatious. This Office has also previously set out a number of non-exhaustive factors considered to be relevant in assessing whether a request may be categorised as frivolous or vexatious. The factors include:
In his submission to this Office, the applicant argued that previous applications for review could not impact on the present review, and that he was entitled to request personal data from the Department. He maintained that the request at issue was a new, standalone request for records that he has never received from the Department, namely medical certificates submitted up to 1995 or records showing that such submission took place. He also maintained that he did not submit any medical certificates on the dates in question, and therefore he expects to only receive a secondary record noting submissions of same. He also maintained that he has a right to have personal records amended where they are incorrect, which in this instance would be any record showing that he submitted medical certificates up to 1995.
This Office has previously dealt with a number of related applications for review submitted by the applicant relating to his disablement pension. It is clear to me that this application is also directly related to his ongoing efforts to challenge the amount of disablement pension that he was awarded by the Department. In its letter of 29 March 2018 to the applicant, the Department stated that it has continually attempted to answer the applicant's questions and deal with his FOI requests to the best of its ability. It stated that doing this has involved attempts to interpret old, incomplete and/or archived records or notations. In its submission to this Office, the Department explained that all relevant records held have previously been released to the applicant and that he has previously been informed that the specific records sought no longer exist.
In my view, the issues arising in this review are very similar, and closely related, to those arising in a number of earlier cases that this Office discontinued on the ground that the requests formed part of a pattern of manifestly unreasonable requests from the same requester. I note that this Office also previously affirmed the decision of the Department to refuse a number of related requests on the ground that the requests were vexatious.
It seems to me that the FOI request in this case refers to matters which have received significant prior attention. In essence, it seems to me that the applicant's primary purpose of submitting the request was to pursue his dispute that has been ongoing for a number of years. I am satisfied that the applicant is using the FOI Act for a purpose unrelated to the right of access to records, i.e. it is being used tactically for the purpose of pursuing his dispute. Accordingly, I am find that the Department was justified in deciding to refuse the request under section 15(1)(g) of the FOI Act on the ground that the request was vexatious.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s refusal of the applicant's request under section 15(1)(g) on the basis that the request is vexatious.
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