Decision
Mr X and Enterprise Ireland
From Office of the Information Commissioner (OIC)
Case number: OIC-113181-B1C8X6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-113181-B1C8X6
Published on
Whether EI was justified in refusing three FOI requests under section 15(1)(g) of the FOI Act (frivolous/vexatious/pattern of manifestly unreasonable requests)
26 March 2024
The applicant made two FOI requests to EI on 9 June 2021 and another on 10 June 2021, which have their background in his request to EI of 28 January 2021 and related correspondence. It is not practicable to set out the requests of 9 and 10 June here because considerable context is also necessary. Rather, they are set out later in this decision in bold.
On 22 June 2021, EI refused the requests of 9 and 10 June 2021 under section 15(1)(g) of the FOI Act (frivolous/vexatious/pattern of manifestly unreasonable requests). On 19 July 2021, the applicant sought an internal review. On 24 August 2021, EI affirmed its decision on the requests of 9 and 10 June 2021. On 14 September 2021, the applicant applied to this Office for a review of EI’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, to correspondence between this Office, EI and the applicant, and to the provisions of the FOI Act.
The scope of this review is confined to whether EI’s decisions on the requests of 9 and 10 June 2021 were justified under section 15(1)(g) of the FOI Act. Although the applicant asked for the review to be expedited because he considers it to concern matters of significant public interest, I saw no circumstances that I felt required the Office to take such a step.
Nature of review
The applicant says that various matters should be relevant to my decision, such as EI’s dealings with him and his company (which he alleges caused or contributed to the closure of the company and the loss of taxpayers’ money), and laws other than the FOI Act concerning “the reporting and investigation of illegality and corruption and the public interest”. He also refers to the comments of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5 (the eNet judgment), whereby Baker J. referred to corruption as an example of when records might require to be released in the public interest.
This review is carried out under section 22 of the FOI Act. Section 22 provides that, upon application to the Commissioner by a relevant person, the Commissioner may carry out a review of a decision made by an FOI body. While I note the comments in the eNet judgment, neither section 22 nor any other provision in the FOI Act gives the Commissioner the power to examine allegations of fraud, illegality, or corruption or other such matters. As set out later, in considering section 15(1)(g) I am entitled to take into account the context in which the FOI requests were made. However, it should be noted that I have no remit to examine the adequacy of EI’s actions or decisions regarding the applicant or his company in general.
Other matters
The applicant wants the review to extend to a number of other matters, many of which concern EI’s handling of his FOI requests. He also maintains that this review should examine EI’s decisions on his FOI requests of 28 January and 30 April 2021.
EI’s FOI practices and procedures
A review under section 22 cannot extend to or take account of matters more appropriate to an investigation under section 44, which inter alia gives the Commissioner the right to conduct investigations into the practices or procedures of FOI bodies for the purposes of compliance with the FOI Act. Furthermore, I do not consider this to be an instance where an investigation into how EI dealt with the applicant’s requests, further to its FOI practices and procedures, appears to be warranted.
The applicant’s January and April 2021 requests
The applicant maintains that this review should examine EI’s decisions on his FOI requests of 28 January (including whether he is entitled to access to the 200+ records that EI excluded from its decision on the basis that they are not covered by the request) and 30 April 2021.
Both the applicant and EI contend that EI made no decision on the excluded records. The applicant says that because there was no decision on the excluded records that was capable of being appealed, he was precluded from seeking an internal review of EI’s decisions on his January and April requests.
The applicant says that he was unaware of the FOI Act until 2021 and that EI should have assisted him, further to section 11(2), by giving him reasons for excluding records. He says it is clear from his correspondence with EI that he wanted the exclusions reviewed. He also says that EI never asked him if he knew his rights, never explained the procedure to him and should not have assumed that he understood the process. He also alleges that the records will reveal fraud and corruption and therefore concern matters of significant public interest.
Section 11(2) requires FOI bodies to give reasonable assistance to a requester in relation to the making of an FOI request and to facilitate the exercise by a person with a disability (which I have no reason to believe is the case here) of his or her rights under the FOI Act. Section 21 is concerned with applications for internal review and does not contain similar requirements. That said, one would still expect FOI bodies to act in the spirit of the FOI Act. However, while the FOI Act places various obligations on FOI bodies, it is important to note that it also places requirements on persons seeking to avail of the Act.
I will detail the applicant’s correspondence with EI later in this decision. In summary, however, it shows that he was informed by EI on various occasions of his rights (including in relation to the making of late appeals), and the requirements of the Act in this regard. The correspondence also shows that the applicant he was aware of and understood his entitlements from as early as 16 April 2021. It seems to me that he could have submitted timely internal review applications to EI regarding any aspects of its first two decisions to which he objected, including the matter of the excluded records, such as he did in his application to this Office in this case. He would thereby have ensured that anything proper to an internal review, and in turn to a subsequent review by this Office under section 22, was raised at the earliest opportunity.
However, I note that the applicant asked EI to take certain steps that are not provided for in the FOI Act. On 16 April 2021, on receipt of the decision on the January request, he asked EI to reconsider the matter “[a]s a next step before asking for a formal review of [the] decision”. He made a similar request in two later emails. He disputed the efficacy of paying for and seeking an internal review. On one occasion, he invited EI to confirm its refusal of any appeal by return so that he could proceed to this Office.
The applicant has also said different things to this Office about whether he sought an internal review of the decisions on the January and April requests. As noted, he says that he was precluded from doing so. However, he also says that he had “no reason or obligation to request a review” of the decision on the January request because most of the records were released and reasons were given for the refusal of the remainder (a comment that is not supported by the applicant’s other views and arguments about such redactions).
Be that as it may, I note that on 19 July 2021, the applicant paid an internal review fee and asked EI to confirm whom would be the internal reviewer regarding its “refusal to release the 200+ records pertaining to the fraud perpetuated [against his company]”. In a series of emails on 27 July, EI asked whether the application was confined to the section 15(1)(g) refusals and said that it could not carry out a review on records that were not covered by his request. The applicant replied that his application concerned EI’s “refusal to release all documents previously requested including the 200+ missing documents.” EI said that the decision of 22 June was the most recent decision and, while outside the FOI Act’s timeframe for making an appeal, the internal review would proceed. It said that it had never received a request for the 200+ records which it considered outside the scope of the first request. In response, the applicant reiterated that his appeal covered EI’s decision making on all his requests.
In seeking EI’s submissions, the Investigator noted that its decision on the 28 January 2021 request effectively refused access to further records covered by that request on the basis that they do not exist (section 15(1)(a) of the FOI Act). She suggested that, further to the applicant’s queries, EI could have asked him to confirm that he was seeking an internal review in relation to the decision on the 28 January request, including in relation to section 15(1)(a) and his position that a further 200+ records covered by that request exist.
EI responded that it understands the FOI Act to require it to retrieve and decide on all records covered by a request in line with the Act. It says it was not aware that it is a deemed refusal where records are found which are outside the scope of a request. It says that, accordingly, many decisions by public bodies would contain a 15(1)(a) refusal where records are found which are outside the scope of the request and says that EI was not aware of this being a requirement of the Act. It also says that the applicant demonstrated an adequate knowledge of his rights under the FOI Act and engaged repeatedly with it in an informed way.
I note EI’s explanation. It seems to me that it acted in good faith in relation to whether the exclusion of records was capable of appeal. I should also say that I do not consider any section 44 investigation of EI’s handling of this issue is warranted. However, and while I acknowledge that the situation derives from a technical interpretation of the FOI Act, there are nonetheless a number of decisions on this Office’s website from which any interested party could conclude that a decision can be appealed on the basis that the body should have considered further records. It is also the case that even FOI bodies that may not get many FOI requests in the normal course still have considerably more exposure to and experience of FOI than requesters.
Having regard to the above, I am satisfied that the applicant sought an internal review of the decisions on the January and April requests on 19 July 2021. However, by 19 July, the statutory timeframe for the applicant to make an internal review application had expired. As I have already explained, in my view it was open to the applicant to seek an internal review before this time. That said, it remains open to EI to exercise its discretion to accept a late application in all of the circumstances. However, it is not appropriate for me to seek its assurances in this regard or to seek to intervene in some other way. The exercise of discretion is a matter for the FOI body and is not a matter that this Office has any powers to review.
OIC Investigator
I also note the applicant’s comments about this Office’s Investigator, arising from her explanation of what she felt this review can examine. He takes issue with her refusal to acknowledge or respond to a particular email and refers to her motivation for “deliberately” limiting the scope of the review. He suggests that she is not examining the matter properly and is covering up wrong doing. He asks for me, or the Commissioner, to clarify particular matters for him before making my decision.
It was entirely appropriate for the Investigator to seek to manage the applicant’s expectations as to the nature and scope of this review. I also agree that it was appropriate for her to ultimately stop engaging with him in this regard when he continued to dispute her views, regardless of the Investigator’s assurances that I would consider his comments and could disagree with her. In particular, I reject any contention the applicant may be making that the Investigator is biased towards him or that her actions have not been in accordance with the FOI Act or this Office’s procedures.
Section 15(1)(g)
Section 15(1)(g) is a discretionary ground for refusing access to a record. It applies where 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 or from different requesters whom the body considers to have made the requests acting in concert.
This Office has found in other cases 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. A number of non-exhaustive factors are relevant in assessing whether a request may be categorised as frivolous or vexatious or as forming part of a pattern of manifestly unreasonable requests, including:
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).
It is noteworthy that in her judgement 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.
Finally, section 15(1)(g) does not require consideration of the public interest. The applicant says, in light of Baker J.’s comments in the eNet case, that the reasonable assistance requirement of section 11(2) requires FOI bodies to consider the public interest in releasing records, particularly when they relate to corruption. I do not agree with any argument he may be making that I should consider the public interest in this case. It is not open to FOI bodies, or this Office, to consider the public interest where the exemption claimed does not require such consideration and so I see no need to set out, or consider, the applicant’s arguments in this regard.
Relevant contacts
I will firstly describe the relevant contacts between the applicant and EI, arising from his FOI request of 28 January 2021. It, and the applicant’s other requests, are in bold font.
The FOI request of 28 January 2021 sought access to various records, summarised as follows:
1. All records relating to various due diligence carried out by EI on the applicant’s company and product in respect of a particular Fund and at various stages
2. All records relating to various due diligence carried out by EI regarding a funding round for the applicant’s company in which EI did not participate
3. All records concerning information received from, sent to or shared with a named investment company regarding the applicant’s company
4. An explanation as to why the applicant’s company was never told that EI was investing in a competing company/product and all records regarding the decision not to inform the applicant’s company accordingly
5. Details of all EI investments in a named company, including all records relating to due diligence completed on the company and a product (this part was later excluded by the applicant)
6. All correspondence between EI and Teagasc in relation to a particular matter
7. All records relating to EI’s interactions with Teagasc and the European Commission (EC) with regard to a particular funding programme and a particular grant; information on the support given by EI for the application for this funding; copies of all correspondence received from, sent to or shared with Teagasc regarding this funding
8. Confirmation whether EI is aware that Teagasc is a charity
9. Records regarding why EI instructed a Government Minister not to meet with the applicant’s company including correspondence with the relevant Government Department
10. A copy of a named EI staff member’s report into the closure of the applicant’s company, as undertaken at the request of the Minister; and all correspondence received from, sent to or shared with the Minister and the relevant Department regarding the review.
I understand that, while the applicant agreed to exclude part 5, further narrowing of the request’s scope did not prove possible.
EI says that initial searches involved multiple departments, and were made more complex by the age of the records and the retirement of many key personnel since the events referred to in the request. It says that the applicant agreed to the decision maker’s view that further time was needed to review the estimated 250+ records that were possibly relevant to the request. It says that no schedule was created of such records. It says that, on examination of their contents, the decision maker considered only 45 records to fall under the scope of the request. A decision issued in relation to those records, which I understand was on or around 15 April 2021.
On 16 April, the applicant emailed the decision maker to query, and ask for, the excluded records and a detailed schedule. He asked why particular questions had not been answered and why the report requested at part 10 had been excluded. He asked the decision maker to re-consider the redactions made to the released records and its overall decision “[a]s a next step before asking for a formal review of [the] decision”.
EI’s response of 26 April explained how the decision covered fewer records than had been initially identified and said that those deemed within the scope of the request were detailed in the issued schedule. It included the applicant’s rights of appeal, including in relation to late appeals.
The applicant’s email to EI of 27 April repeated his request for “a full schedule individually identifying all 250+ records” initially identified, and the specific grounds for refusal in each case.
EI’s reply of 30 April said, inter alia, that it had not created any schedule of the records considered not to be covered by the request. It reiterated rights of appeal.
On 30 April 2021, the applicant made an FOI request for a copy of the “list/schedule of all documents identified by [the decision maker] …“and all records “relating to the decision to withhold release of 200 plus documents …”. He referred to the closure of his company and to the reasonable assistance requirements of the FOI Act. He said that, notwithstanding its obligations under the Act, any reasonable observer would expect EI to “actively assist in investigating the wrong-doing”, rather than concealing the truth. He also asked the decision maker to follow up questions in the request of 28 January.
On 1 June, the applicant emailed EI saying that its failure to issue a decision by the deadline of 31 May was a deliberate attempt to frustrate the appeal process. He made other comments, including how EI should be giving him reasonable assistance and actively assisting in investigating wrongdoing, and how its failure to do so suggested EI’s complicity in illegality.
EI’s decision of 1 June said that the requested records do not exist (section 15(1)(a) of the FOI Act). In particular, it explained that a decision maker is not required to create a schedule of all records found during a search. The decision included rights of appeal.
The applicant emailed EI again on 1 June. He said that its response was “nothing less than perverse.” He said that “the record exists, because [EI] have told us it exists” and that the schedule had disappeared. He reiterated that EI should be giving him reasonable assistance and actively assisting in investigating wrongdoing. He said that EI had not responded to questions put to it in January, despite repeated requests. He commented about the efficacy of paying for an internal review and invited EI to confirm its refusal of any appeal by return so that he could “take matters swiftly to the next stage, before any more documents ‘disappear’”.
EI’s reply of 8 June reiterated that no schedule had been created of all records initially identified. It explained that best practice recommends the production of a schedule of records within the scope of an FOI request, which had been provided. It also said that the applicant must request an internal review for EI to fulfil its obligations under the FOI Act. It said that it was unable to provide an appeal decision where the formal process had not been followed.
The applicant’s email to EI of 9 June 2021 said that the requested schedule should exist. He commented on the redaction of records covered by the January request, which he said “smack[ed] of sharp practice”. He commented on the records excluded from that decision, which he said should be scheduled so that he could appeal their refusal. He referred to the staff member named at part 10 of the January request, and said that this official had “spuriously” refused to carry out the inquiry. He said that the report he had sought at part 10 had not been provided and that he did not know if it had been completed. He said he was making an FOI request for all records regarding any and all EI investigations into the closure of his company, including all records drawn up, written by, or related to the staff member. I will refer to this as the first request of 9 June.
The applicant said that it was appalling he should have to seek this information under FOI. He said that his company had closed because of serious illegality. He said that EI should be actively assisting him to reveal the truth, but there had been no investigation and now documents were being blocked and records/evidence were disappearing. He disputed why he should pay an internal review fee for a process he had no faith would be carried out properly.
He asked various questions, some of which concerned EI’s refusal of part 7 of the January request under section 15(1)(a) and its explanation that a particular matter was the responsibility of a Department of State. He took issue with that particular aspect of EI’s decision and said that, “to help clarify matters, [he] will make the request again” and repeated the wording of part 7 of the January request. I will refer to this as the second request of 9 June 2021.
The applicant also asked EI to answer the questions in his January request and previous emails. He again asked for a schedule of the 250+ records that he said were covered by his request, detailing the decision and any exemption provisions, so that he could make an appeal as per the formal process required by the FOI Act. He said that EI “might take the opportunity” to review its previous decisions regarding all records that it refused under sections 30(1)(c) (negotiation of an FOI body) and 40(1)(c) (State industrial development strategy) of the FOI Act.
On 10 June 2021 the applicant made an FOI request for all/any deleted information, including all emails, and any other digital records relating to his requests of 28 January, 10 May (which is presumably that of 30 April, which EI acknowledged on 10 May) and 9 June 2021.
On 23 June, the applicant emailed EI in response to its decision of 22 June. He disputed the basis for the refusal under section 15(1)(g), saying that it was reasonable to make requests for records regarding suspected illegality, especially given EI’s refusal to investigate the matter. He said that his first request was reasonable and that he had been told it covered more than 250 records, which EI should have scheduled in line with best practice and for which he again asked. He said that it was very reasonable for him to ask EI to search its servers for deleted records, given his knowledge, from EI’s correspondence, that more than 200 records were now missing.
On 24 June, the applicant emailed EI to describe what had happened to his company and how this had impacted, and continues to impact, on himself and others. He asked EI to withdraw its allegations of unreasonableness and to reassess its refusal to release the requested records. He referred to EI’s moral, legal and fiscal duty to assist him to reveal what had happened, not only as required under FOI but also as custodians of the public purse. He asked EI to actively assist in establishing the truth and holding those responsible to account, rather than deliberately obstructing justice. He concluded by saying that EI must release the requested documents, and must fully engage with him to properly consider the evidence and uncover the truth. He said that EI must conduct a full and proper investigation and take the appropriate action to resolve these issues. He asked for the matters to be brought to the attention of EI’s CEO and Board.
EI’s email of 30 June explained how, further to an examination of the records provided by various parts of the organisation to the decision maker on the January request, certain records were found to be outside the scope of the request or duplicates of others within scope. It said that the records within scope were decided on and asked if the applicant wished to appeal the application of section 15(1)(g).
Also on 30 June, the applicant emailed EI, asking it to confirm if the matters had been brought to the attention of the CEO and Board. He repeated that his request for information was not unreasonable and asked EI to withdraw its “accusation”. He said that EI had not addressed the substantive issues he had raised. He noted EI’s refusal to provide a schedule and what he said was obfuscation regarding what records still exist and the reasons for their refusal. He said that he had no option but to seek an internal review but that he had no confidence in it because of EI’s “refusal to date to address the substantive issues related to our information request.” He said that, notwithstanding EI’s obligations under FOI, it should release information it holds that would help determine what had happened to his company. He said again that EI has a duty to investigate the matters leading to his company’s closure and the loss of taxpayers’ investment. He said that he was available to meet EI’s CEO, Board, and legal representatives so that it could properly address these matters.
EI replied on 1 July with details concerning the payment of internal review fees.
On 19 July, the applicant asked EI who would be carrying out the internal review. He said that the specific matters about the case had been referred to various regulatory bodies. He noted that EI had not taken the action required of it to date. He said that he had not heard from the Secretary of the Board, further to EI’s confirmation that his communications had been advised to that person. He said that the recipient of his email “might now insist that the CEO and Board fulfil their duty and open a full and proper investigation, rather than hiding behind FOI to block the truth.” He reiterated his availability to meet with the CEO, Board and EI’s internal and external legal teams when convenient.
I understand that the first person appointed as internal reviewer identified a potential conflict of interest in dealing with the matter, and that a second internal reviewer was proposed.
The applicant emailed EI on 5 August 2021, suggesting that the second proposed internal reviewer may also have a conflict of interest. In particular, he reiterated EI’s duty to investigate fraud and illegality and asked EI to notify the CEO and Board of the contents of the correspondence. He repeated that he was available to meet with those parties and EI’s internal and legal advisors “so that they can carry out their public duty and properly investigate and resolve these matters.”
EI identified a third proposed internal reviewer. On 19 August, the applicant emailed this reviewer. He referred briefly to the exclusion of records from the decision on the January request and the redaction of others. He went on to say that these matters “go way beyond [EI’s] obligations under the FOI Act, as they involve matters of fraud and illegality which must be properly investigated.” He suggested a meeting with the reviewer and EI’s internal and external legal advisors “so that [EI] can carry out a full and proper investigation to help bring the perpetrators to justice.” He continued that, notwithstanding EI’s obligations under FOI and other requirements, there was an “overwhelming public interest that these matters be properly investigated”. He expressed “hope that [the reviewer’s] involvement will now see proper action taken”. He asked the reviewer to inform the CEO and Board of the correspondence.
Also on 19 August, EI emailed the applicant to explain why a further different internal reviewer was now being appointed. On the same day, the applicant emailed the third and fourth reviewers and the FOI unit. He said that the decision on his request “in no way alters the responsibility of [EI] … to carry out [its] duty to protect the public purse.” He expressed hope that the new reviewer “will now take the action that is needed.” He reiterated his availability to meet the reviewers and EI’s internal and external legal advisors, “so that [EI] can carry out the necessary full and proper investigation this matter requires.” He asked the CEO and Board to be informed and asked EI to copy in the Minister and Secretary General so that they are aware of what EI is doing “to resolve this issue.”
EI’s submissions
EI says that the applicant made a complaint to it and to a Government department about the activities of another state body. It says that its staff have communicated with the applicant in various ways to explain that it cannot review such a matter. It says that the applicant is aware that a review will not proceed without additional information relevant to EI’s own activities, which it has not received.
It says that the applicant has tried to use FOI to raise the complaint with EI’s Senior Management and Board, and repeatedly asked the FOI Office to confirm that it has done so. It says the applicant has been advised that FOI is a separate process, and thus that the FOI Office only asked the Secretary of the Board to confirm his awareness of the issues. It says that it has received a number of challenging communications from the applicant in relation to the matter, including being copied in on communications directed to Ministers, politicians and senior civil servants. EI also says that its FOI team have received over 30 lengthy and challenging emails that extend beyond FOI and concern the complaint.
EI says that the applicant sent the January request multiple times over the course of 24 hours, both to the FOI Office and to a particular official, seeking immediate acknowledgement. It says that although the applicant acknowledged the FOI office’s confirmation of receipt, he sought the same assurance from the named official numerous times over the next few days. EI says that the January 2021 request was very broad in scope and challenging in nature, in that it had multiple parts and several questions that are not valid from an FOI perspective, and that it made every effort to source all records within scope.
EI says that the January request was related to the subject matter of the applicant’s complaint. It says it told him that the FOI process would be an independent process but that he continued to communicate to the FOI Office in relation to his complaint. It says that when the applicant received his decision on the request, he did not seek access to the records deemed outside its scope but, rather, a schedule that it had told him did not exist. It says that it engaged with the applicant on a number of occasions in this regard.
In relation to the three requests that were refused under section 15(1)(g), EI says that they form part of a pattern of unreasonable requests and also sought records that had already been requested. It also says that the requests are broad and detailed, particularly that of 10 June, which it says was intended to support the applicant’s claim that EI had deleted and withheld information to cover up wrongdoing. It says that it would take significant time and resources to work through backups and cross reference whether files had been deleted. It notes that while it agreed to the applicant’s request for a change of internal reviewer on these refusals, he emailed the alternative reviewers with details of his complaint.
The applicant’s submissions
The Investigator’s letter to the applicant of 6 January 2022 outlined the material aspects of EI’s submission and related issues. She also noted that the applicant had referred to the Commissioner’s guidance note on section 15(1)(g) and said he would therefore know that this review may consider the requests at issue in the context of his other requests to EI and his dealings with the body in general.
The applicant says that FOI Act/process is only concerned with access to records, makes no preconditions as to the requester’s purpose and does not prescribe the length or amount of their correspondence. He says that it is not relevant to the FOI body whether the records are part of a complaint or will be used for other purposes.
The applicant says that the FOI Act requires bodies to create schedules and give reasons for refusal. He says that when EI refused to do so in relation to the excluded records, he rightly asked if they had been excluded as part of a wider cover up because they relate to EI’s potential involvement in and knowledge of criminal activity. He suggests that this is why EI found his communications challenging.
The applicant says that EI could have met its requirements under the Act at any stage and, even if it chose to withhold the records, could have given legitimate reasons for doing so. He says that EI prevaricated and abused the process before using the “entirely spurious” section 15(1)(g) to cover up its actions. He says that discrediting his requests by implying that there is something wrong in contacting Ministers, politicians and senior civil servants is a further abuse of process.
The applicant says that a pattern of conduct requires recurring incidents of related or similar requests on the part of the requester, and that the time over which the behaviour is committed is also relevant. He says that the pattern of his requests is very specific i.e. that he has effectively made just one request and that the others resulted from what he alleges was EI’s abuse of process in its exclusion of records and its effective removal of his right to appeal in relation to the records.
The applicant says that his correspondence was entirely appropriate, reasonable and proportionate. He says that his company was a victim of fraud, corruption and other illegality, and that he has every right to investigate those matters. He says that his first request was not frivolous or vexatious or made in bad faith and that he was told it covered more than 250 records. He says that his subsequent correspondence concerns what happened to these “missing” records, why they have been refused, and assurances that they have not been deleted or destroyed.
The applicant says that his April request was very reasonable, given that he was unable to seek an internal review of the exclusion of records covered by his January request. He says that the Investigator is suggesting he is at fault by observing that he sought access under FOI to a schedule that EI had already told him did not exist. He says that EI should be asked why it did not schedule the excluded records and to explain its refusal to release them.
The applicant says that “with no response forthcoming, and no proper schedule released”, he sought to help EI locate the records with a more specific request on 9 June. He refers specifically here to where he repeated part 7 of the January request. He says that this “was entirely reasonable given the matters under investigation and the clear public interest in uncovering corruption”. He offers to provide details to this Office in support of his contention and says that EI has refused to engage with him in this regard. He says that EI’s “correspondence fails to acknowledge this aspect of the case”, and that their actions suggest “a significant conflict of interest”, which he wants this Office to investigate (as I have already explained, the applicant’s view on the conflict of interest that he says is presented by EI acting as FOI body on the request he made to that body, is not a matter relevant to this review).
The Investigator’s letter noted that EI’s decision on the April request issued on 1 June. She queried how the applicant could have helped EI find records that by 9 June it had said never existed, through making either the first or second FOI request of 9 June. She also noted that the 1 June decision on the April request had included rights of appeal. The applicant responds that his requests all relate to “the exact same documents” and point to EI’s deliberate abuse of process i.e. its exclusion of records from a decision such that his right to appeal was frustrated. He says that he sought a review at the earliest opportunity. He says that EI ran down the clock and is abusing the provisions of the FOI Act by relying on section 15(1)(g) rather than by giving him a legitimate reason for refusal of the excluded records, for which there is no basis to withhold in any event and which EI itself identified as covered by the request.
The Investigator’s letter also noted that the second FOI request of 9 June seeks records relating to part 10 of the January request, which itself relates to the applicant’s complaint. She referred to EI’s view that the applicant is using FOI as a means to revisit this matter and explained that FOI is not an alternative complaint mechanism, even if the applicant feels that he has genuine reasons for making his requests. The applicant agrees that FOI is not an alternative complaint mechanism. He says that he has not used the Act for such a purpose. He suggests that EI might not want to release the records because they relate to criminality, and that EI is diverting attention from this. He reiterates that EI is required under the FOI Act to release requested records or give reasons for refusal, but that it failed to do, has frustrated and abused the process and spuriously used section 15(1)(g) to continue to deny access. He says that, even apart from the public interest in their release, there is no justification for EI not releasing the records without giving a proper reason.
Insofar as the 10 June request is concerned, the applicant says that given 200+ records “seemingly now did not exist”, it was reasonable to ask EI to search its servers to establish this. The Investigator noted that while the request is not, of itself, particularly broad or detailed, EI’s position is that its nature would require significant time and resources to process. She also noted that the correspondence did not indicate that EI had said the excluded records did not exist. She said that EI had instead said that neither a schedule of such records, nor documents explaining why they were not covered by the request, existed. The applicant replies as to the specific pattern of his requests. He says that the 10 June request was right, proper and entirely reasonable given the exclusion of records which would not confirm were missing or withheld or continued to exist. He maintains that because only some of the initially identified records were covered by the decision, the remainder were “missing”. He also says that it may not be apparent from EI’s correspondence that the 205 records no longer exist, but it is not apparent that they do. He goes on to say that this Office should establish the current status of the records and question EI as to why they were not scheduled and reasons given for their refusal.
The applicant also maintains that it is a lie to say that he sought further records that had been the subject of decisions under the Act. He reiterates that he only ever sought the 200+ records that EI had excluded and not scheduled. He also explains how he identified a potential conflict with a replacement internal reviewer. He says that he wrote to the reviewer, which the FOI Act does not prescribe him from doing, and that it was only right and proper to explain his concerns in the circumstances.
It is important to note the parameters of the FOI Act at the outset. Firstly, the mechanism for seeking access to information held by public bodies is by accessing records held by those bodies (section 11 refers). I draw no inferences from the applicant’s repeated requests to EI to answer the questions posed in his January request. However, he should be aware that questions, requests for information, explanations or confirmation that a body is aware of particular matters, as opposed to requests for records, are not valid requests under the Act, except to the extent that these could reasonably be inferred to be a request for records containing the information etc. sought.
EI and the applicant differ on whether the excluded records are covered by the January request. The applicant also maintains that he was told at the outset that they were so covered, while EI maintains that it told him they were only potentially covered. As stated already, this is not a matter for this review. However, it is worth emphasising that a requester has no right of access to records that are not covered by the scope of his or her FOI request. If a record’s contents do not meet the parameters of an FOI request, then that is the end of the matter. Court judgments on the application of exemption provisions and the public interest are not relevant to the issue, nor are any views that the requester may have as to the significance of such records or as to why they should be released.
The Act does not require public bodies to create records covered by a request if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. It is good practice for FOI bodies to prepare schedules of records. Although the applicant maintains otherwise, the FOI Act does not require such a step to be taken, or prescribe how much detail should be in any schedule that is created. Neither does the FOI Act prescribe the sort of explanation that a body must give regarding why records are not covered by an FOI request. However, I do not draw any inferences from the applicant’s insistence that EI should have, and must, create a schedule of the records it initially located and/or give him a better description of the excluded records.
As well as providing for the right of access to records, the FOI Act provides for the refusal of requests, including under the administrative grounds of refusal out in section 15 and the substantive exemption provisions set out in Part 4, etc. As I have already said, while the FOI Act gives requesters certain rights and imposes various requirements on FOI bodies, it also envisages that requesters behave reasonably when making requests.
The fact that the applicant has made five requests in a six-month period does not, of itself, determine that EI is, or is not, justified in relying on section 15(1)(g) in relation to the requests of 9 and 10 June. However, for the reasons set out below, I consider the three requests at issue to form part of a pattern of unreasonable conduct on the applicant’s part that amounts to an abuse of process or an abuse of the right of access. Furthermore, and in particular, I consider the applicant to have used FOI in order to accomplish an objective unrelated to the access process i.e. to prompt EI to investigate his complaint. It should be noted that, while this review is not considering whether the January and April requests fall under section 15(1)(g), they and related correspondence are relevant to the overall context in which the three requests at issue were made.
I note EI’s position that the applicant has copied it on communications sent to other parties regarding the complaint. On the face of it, there is nothing wrong in contacting Ministers etc. in relation to an issue of concern, such as a complaint. The applicant does not dispute that he has included EI in a number of such communications notwithstanding that he offers an alternative view as to why they are considered challenging. In addition, he does not dispute the number of emails EI says he sent the FOI team that extend from FOI into the complaint, or its description of how the applicant sought confirmation that EI had received the January request. On the face of it, this latter set of contacts seems particularly excessive.
Although the applicant says otherwise, he has in fact made requests for records that he has already sought under the FOI Act. His first 9 June request seeks all records covered by part 7 of the January request. His second 9 June request seeks, inter alia, the report sought at part 10 of the January request.
The applicant gives two different explanations as to why he made the first request of 9 June. One explanation is, essentially, is that the content of the records concerned requires their release. As set out earlier, other elements of the applicant’s email of 9 June disputes EI’s decision on part 7 of the January request. However, the appropriate way to pursue this matter is through the internal review process, not by repeating the FOI request itself. As already stated, I do not accept that EI’s general exclusion of records from its decision on the January request precluded the applicant from seeking an internal review of that decision. In particular, I do not accept that such exclusion prevented the applicant from seeking an internal review regarding records on which EI had decided, or from arguing that records/further records relevant to specific parts of the request exist. As noted already, the applicant instead asked EI to take steps not provided for in the FOI Act and did not seek to exercise his rights of appeal until 19 July.
The applicant’s other explanation for repeating and reinstating part 7 of the January request is that it would help EI find the entirely different type of records that he had sought in April, and which by 9 June he had been told do not exist. I do not see how this offers EI any such help and the applicant has not given any further explanation even though the Investigator queried this. For similar reasons, I do not see how repeating the request for the report sought at part 10 of the January request could have helped EI find the records sought in April (should this also be the applicant’s position, which is not clear).
I note the applicant’s position as to why he made the request of 10 June. I agree with the Investigator that this request is not, on its face, particularly broad or detailed but also with her view that EI’s correspondence does not say the 200+ records no longer existed. In any event, any reasonable person would accept that the process of identifying the particular records covered by the request would not be straightforward.
The applicant does not explain why he made the second 9 June request. As noted, other parts of the email of 9 June comment on EI’s failure to provide a report covered by part 10 of the January request. In particular, the applicant makes a further request for the report even though the proper way to dispute its refusal is through the internal review process. I should also say that the fact that the second 9 June request also seeks records that the applicant had not requested previously does not, of itself, mean that section 15(1)(g) cannot apply to it.
As the Investigator said to the applicant, part 10 of the January request is concerned with his complaint, and the second request of 9 June also relates to this matter. I acknowledge how distressing and stressful it must be for any business owner for their business to cease trading and I appreciate why they would seek to be as informed as possible about related matters. I note the applicant’s acknowledgment that it is not appropriate to use FOI as an alternative complaint mechanism or dispute procedure. I also note his position that he has not used FOI in such a manner, that he just wants to obtain records relevant to the closure of his company, and that he has sought to “explain [his concerns” and/or to explain why the FOI requests should be granted. However, I believe that the applicant’s contacts with EI go well beyond explaining his concerns or making arguments concerned with his FOI requests.
In most of the emails described above, the applicant refers to EI’s duty to investigate his complaint and to how it should be actively assisting in such a matter. His emails to the internal reviewers in particular say that EI should “properly investigate”, or take “proper action” or “take the action that is needed”, etc. and seeks meetings in this regard. He asks for emails about his FOI requests to be brought to the attention of the CEO and Board and other parties in the particular context of his complaint.
Having regard to all of the foregoing, I am satisfied that the three requests under review do not represent legitimate and reasonable requests for access to records. Furthermore, and in particular, they seem to me to be part of the applicant’s attempts to persuade EI to examine his complaint and therefore to accomplish objectives unrelated to the access process. Having considered the matter very carefully, the three FOI requests seem to me to form part of a pattern of unreasonable conduct toward EI amounting to an abuse of process or an abuse of the right of access. I find that EI’s refusal of the requests of 9 and 10 June 2021 is justified under section 15(1)(g) of the FOI Act.
In the circumstances, it is not necessary to set out or address the applicant’s arguments concerning what I assume to be his position that certain substantive exemption provisions do not apply to the records covered by the three requests. In any event, my review would not examine this issue if I had found EI’s refusal of the requests not to be justified; rather I would have directed it to make fresh decisions on the requests under the provisions of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm EI’s refusal of the applicant’s requests of 9 and 10 June 2021 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.
Deirdre Gallagher, Senior Investigator