Decision
Mr F and Office of the Revenue Commissioners
From Office of the Information Commissioner (OIC)
Case number: 130136
Published on
From Office of the Information Commissioner (OIC)
Case number: 130136
Published on
Whether the Revenue was justified in its decision to refuse access to copies of replies it had previously issued to the applicant, on the basis that the provisions of section 10(1)(e) of the FOI Act apply.
19 February 2014
The background to this application for review lies in a prolonged exchange of correspondence between the applicant and the Revenue since July 2005, in connection with a number of FOI requests made by the applicant relating to audits (actual and alleged) carried out by the Revenue. This Office dealt with two previous applications for review which were concerned with requests for access to records concerning audits which, it appears, did not take place. The confusion appears to have arisen from a note prepared by a Revenue official of an interview dated 21 June 2005 with the applicant, which refers to audits alleged to have taken place in 1990 and 1998, when in fact no such audits seem to have taken place.
One such request, made in December 2011, for records relating to a 1990 audit which, apparently, did not take place, resulted in a further prolonged exchange of correspondence. On 27 September 2012, the Revenue informed the applicant that matters he referred to in some of that correspondence had "already been the subject of detailed replies". On 8 January 2013, the applicant sought access to copies of these detailed replies. The request was refused pursuant to the provisions of section 10(1)(e), a decision which was upheld on internal review. The applicant applied to this Office for a review of the Revenue's decision on 27 May 2013.
In carrying out my review, I have had regard to the provisions of the FOI Act; to correspondence between the Revenue and the applicant; to details of various contacts between this Office and the Revenue, and to details of various contacts between this Office and the applicant, particularly the preliminary view letter, dated 20 August 2013, sent to the applicant by Mr Edmund McDaid, of this Office. The applicant made a submission in response to Mr McDaid's letter and I have now decided to conclude this review by way of a formally binding decision.
The scope of this review is concerned solely with the question of whether the Revenue was justified in refusing access to copies of the replies which the Revenue referred to in its letter of 27 September 2012, on the ground that section 10(1)(e) of the FOI Act applies.
A request may be refused under section 10(1)(e) of the FOI Act if, in the opinion of the head, the request is frivolous or vexatious, or forms part of a pattern of manifestly unreasonable requests from the same requester. The head is not required to offer to assist, or to assist, the requester to amend the request that it no longer falls within the parameters of section 10(1)(e). It is also relevant to note that section 8(4) of the FOI Act, as amended, allows a public body to take into account the motive of a requester when considering if section 10(1)(e) applies.
Mr McDaid explained in his letter of 20 August 2013 that this Office considers a request 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. The letter also explained that this Office has set out a number of non-exhaustive factors considered to be relevant in assessing whether a request may be categorised as "frivolous or vexatious", including;
• the number of requests made: are they considered excessive by reasonable standards?
• the nature and scope of the requests: are they excessively broad and varied in scope, or unusually detailed?
• 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?
• the intent of the requester; is the requester's aim to harass the public body?
Having regard to those factors, I believe it is appropriate to consider the application under review in the context of the applicant's dealings with the Revenue.
The letter of 27 September 2012, wherein the Revenue informed the applicant that matters he referred to in previous correspondence had "already been the subject of detailed replies", was issued as a direct response to the applicant's letters of 2 August 2012 and 13 September 2012. Those letters referred to previous correspondence which, in the applicant's view, contained issues which had not been dealt with by the Revenue. However, it is noteworthy that the issues in question related to a request which the applicant made in December 2011 for records relating to a 1990 audit and to the matter of a previous request, under section 17 of the FOI Act, for amendment of an interview note prepared in 2005, which was already accepted as being incorrect, insofar as it suggested that an audit had taken place in 1990. It is quite clear to me that a substantial volume of correspondence was exchanged between the two parties on those matters. I note the following:
• The applicant's FOI request of 5 July 2005 included a request for records relating to a 1990 audit.
• His FOI request of 13 March 2007 was for an amendment of the interview note prepared in 2005,
• The applicant's FOI request of 21 April 2008 was for records relating to a 2004 audit, based on the content of the 2005 interview note.
• The applicant's FOI request of 25 August 2008 for records relating to a 1998 audit, was based on the content of the interview note. The Revenue's decision in that case was reviewed by this Office and its decision was upheld.
• The applicant submitted a further FOI request on 21 December 2011 for records relating to a 1990 audit, based on the contents of the interview note.
In this case, it is clear to me that the applicant is using FOI to make repeated, persistent efforts to argue his case in relation to the manner in which he believes the Revenue has treated him. His requests are repetitive, and involve such a volume of correspondence that it can only be described as excessive, by any reasonable standards. On the matter of the request which is the subject of this review, it seems to me that the applicant ought to know that the Revenue's claims that the matters he referred to in some of the correspondence referred to in the letter of 27 September had indeed, "already been the subject of detailed replies". Moreover, if he believes that the Revenue's many replies did not address the specific issues, then it appears to me that he submitted the FOI request in the full knowledge that the records he is seeking do not exist. Either way, this strikes me as an abuse of process. I find that the purpose of the request was directed at an objective unrelated to the access process.
I also find that the applicant's use of FOI in this case was, at a minimum, intended to serve as a mechanism for arguing his case as to the manner in which he has been treated and to prolong his pursuance of that grievance dating back to 2005. Indeed, in the applicant's response dated 28 August 2013 to Mr McDaid's preliminary view, he acknowledges that his "reason for the present application for review was to merely show, yet again, the negligent misrepresentation of the Office of the Revenue Commissioners in the correspondence referred to".
Having regard to the nature of this FOI request, in particular, I have concluded it was not made in good faith and that, as set out above, a pattern of conduct exists in this case which amounts to an abuse of the right of access. Having considered the matter, I am satisfied that the Revenue is justified in refusing the request on the ground that it is frivolous or vexatious, pursuant to the provisions of section 10(1)(e) of the FOI Act. I find accordingly.
Having so found, I do not consider it necessary to examine that aspect of applicant's request which related to a previous decision made by the Revenue under section 17. In fact, I think it worth noting here that the applicant did not seek review by this Office of that decision of the Revenue.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Revenue's refusal of the request under section 10(1)(e) of the FOI Act.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Sean Garvey
Senior Investigator