Decision
Ms. Y and the Office of Public Works
From Office of the Information Commissioner (OIC)
Case number: OIC-152906-B4W8H8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-152906-B4W8H8
Published on
Whether the OPW was justified in refusing access to certain records relating to Castletown House under section 15(1)(g), on the basis that the request was frivolous or vexatious, or formed part of a pattern of manifestly unreasonable requests from the same requester or from different requesters who appeared to have made the requests acting in concert
17 June 2025
By way of background, Castletown House is a national heritage site operated by the OPW. In 2023, following a change in ownership of the surrounding land, the existing access route from the M4 to the site and car park was no longer available for public use. In October 2023, the OPW published an FAQs document stating that “the official entrance, and for now the only entrance, to Castletown House and all State owned lands is via the Celbridge Gate and Lime Avenue”. As has been widely reported in the media, the use of this alternative access route has given rise to protests by local residents. While there is limited public access to the grounds, Castletown House remains closed to the public until a solution can be found.
In January 2024 the OPW undertook a public survey to gather information on how people travel to Castletown House, what is important to them when they visit and how visitors can be supported to use active travel and public transport. The applicant in this case has made a number of requests to the OPW seeking access to records relating to various matters arising on foot of the access issues arising at Castletown House. This case relates to her request dated 21 January 2024, seeking access to records relating to the decision to compile and issue the public survey and all records relating to the drafting of this survey.
Further to the applicant’s request, it would appear that on 24 January 2024 she received an email from an official of the OPW who referred to section 27 of the FOI Act; relating to the imposition of fees. The official said that in his estimation 4 staff members working for 2 hours would be the minimum amount of time required to complete the search and retrieval work on the applicant’s request. The official indicated that this would equate to an overall fee of €160 and invited the applicant to consider amending her request to reduce/eliminate any deposit/fee.
On 6 February 2024 the applicant responded positively to this correspondence and asked how she should re-word her request to reduce/eliminate any fee. The applicant received no response to this correspondence. The applicant followed up by emails dated 9 February 2024, 13 February 2024 and 18 February 2024 to the FOI Unit and indicated that she was open to re-wording her request but she received no response. On 20 February 2024, the OPW refused the applicant’s request under section 15(1)(g) of the FOI Act, on the basis that the request was frivolous or vexatious or formed part of a pattern of manifestly unreasonable requests from the same requester or from different requesters who appeared to have made the requests acting in concert.
On 13 March 2024, the applicant made an internal review request to the OPW. The OPW affirmed its original decision on 15 April 2024, and on 15 October 2024, the applicant applied to this Office for a review of the OPW’s decision.
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 between the parties to date and to submissions made by the applicant and by the OPW to this Office. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the OPW was justified in refusing the applicant’s request under section 15(1)(g) of the FOI Act.
Section 15(1)(g)
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. The factors include:
• 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?
When considering whether a request forms part of a pattern of manifestly unreasonable requests, it seems to me that the question I must consider is not whether each request, of itself, is manifestly unreasonable. Rather, I believe that the appropriate approach to take is to consider 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).
As noted above, the list of relevant factors 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). In the context of this particular case, it is also very important to note that this Office 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 in Kelly v the Information Commissioner [2014] IEHC 479 (the Kelly case), 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 in Grange 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 Kelly case, the High Court found that in determining whether a particular application should be described as vexatious, the Information Commissioner is entitled by statute to use his discretion. It found 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”.
OPW’s submissions
In its submissions to this Office, the OPW said it is of the view that the applicant’s interactions with it overall, including the number and frequency of her FOI requests, were at a vexatious level. The OPW also indicated that the applicant’s husband has made a significant number of requests for records and it considers that the applicant and he were acting in concert. It also said that it believes that many records were available to the applicant as a result of her membership of a particular group (Group X), saying that it is also of the view that the applicant and her husband are acting in concert with Group X.
The OPW said that the applicant submitted six FOI requests relating to Castletown House in less than a month (from 2 January to 22 January 2024). It provided a list of these requests and the dates they were received, showing that on one occasion the applicant made two requests in a single day. The OPW also stated that the applicant’s husband submitted four FOI requests in the same month (from 2 January to 14 January 2024). It also provided a list of these requests and the dates they were received.
The OPW said that the decision-maker formed the opinion that the applicant and her husband were acting in concert, both with each other and also within the wider Group X. It said that these requests, when considered in their totality, form a pattern of manifestly unreasonable requests and appear to be intended to disrupt the operation and administration of Castletown House. It said that since September 2023, individual members of Group X have submitted a total of 63 FOI requests. It said that these requests put a significant strain on the section who were also managing a large volume of email correspondence, ministerial representations, formal complaints, press queries, AIE requests as well as the daily management of the estate.
Furthermore, the OPW said that it is the opinion of the decision-maker that Group X is acting in concert in an attempt to ‘weaponise’ the FOI Act. It said that sections of some of the documents already released under FOI requests from members of this Group have been ‘selectively released’ into a local WhatsApp group and social media pages. It said the commentary that accompanied these releases was believed to be ‘designed to agitate the local community against the OPW’ and it was believed that the requests received were ‘fishing’ for information which could be released to the community as ‘evidence’ that the OPW were not acting in the best interests of the community. The OPW made specific reference to a meeting between Group X and officials of the OPW, following which ‘the [Group] representatives misquoted, or selectively quoted the [officials] on a number of matters which seemed designed to exacerbate local option [sic] and turn it against OPW’.
The OPW said that Castletown House Management have regularly offered to meet with Group X at their weekly meeting in order to create a better channel of communication and ‘this offer has never been accepted’. The OPW further stated that it has offered to meet with the applicant’s husband and other individual members of the Group, which has also not been accepted. In conclusion, it repeated its assertion that it considers the use of the FOI Act in the current matter to be vexatious.
In addition, in my correspondence with the OPW I had queried the apparent initial engagement with the applicant following the submission of her request relating to the possible imposition of a fee. In particular, I had queried whether this was reflective of an initial willingness on the part of the OPW to substantively process the applicant’s request. However, the OPW did not respond directly on this point.
Applicant’s submissions
I provided the applicant with details of the submissions made by the OPW and she was given an opportunity to comment. In response, the applicant once again referred to her initial engagement with officials of the OPW following the submission of her request wherein the possibility of a fee was raised. The applicant argued that it would appear the OPW were initially willing to process her request but ultimately refused her request on the basis of section 15(1)(g), not because she herself was being frivolous or vexations, but that the OPW had simply received too many FOI requests in relation to Castletown House. The applicant said that this is an incorrect application of the provision.
In addition, the applicant said that both the original decision and the internal review decision contained incorrect information in relation to the number of FOI requests submitted by her specifically and by members of Group X more generally. Finally, the applicant queried the reference by the OPW in its submissions to a meeting in May 2025 and asked how this has any bearing on her FOI request submitted in January 2024.
The FOI Act affords important access rights to records held by FOI bodies. Indeed, in performing any functions under the Act, 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 frivolous or vexatious. However, the Act assumes reasonable behaviour on the part of requesters. I would add that I would expect the applicant to have appropriate regard to the impact on OPW’s other functions of processing multiple and/or very detailed requests.
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 applicant’s request under section 15(1)(g) is twofold; that the applicant has made an excessive number of FOI requests over a relatively short period of time and that the applicant is acting in bad faith and in concert with her husband and/or other members of Group X.
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 difference 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 also note the Senior Investigator’s comments in Case OIC-107804-N6C5H3 that an FOI body may reasonably refuse a request on the basis that the requester appeared to be acting in concert with another requester ‘even if the evidence is circumstantial or incomplete’.
It is important to bear in mind that under section 22(12)(b) of the FOI Act, the onus is on the OPW to justify its refusal, and not on the applicant to show that she was not acting in concert with another requester(s). I also note that the Act is silent on the types 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 the decision referred to above, the Senior Investigator referred to three matters raised by the FOI body in that case in support of its decision to refuse the applicant’s FOI request on the basis that it formed part of a pattern of manifestly unreasonable requests made by the applicant and another individual with whom it believed him to be acting in concert. These were the specific and unusual nature of the request made and its similarity to a request made by another individual; the applicant’s reluctance to cooperate with the Department during the processing of the request, and that according to the Department, it was contacted by the individual with whom the Department considered the applicant to have been acting in concert during the course of the review with apparent knowledge of matters arising in the review. I note that none of these arguments have been made by the OPW in this case.
In this case, the OPW said that it considers that the applicant was acting in concert with her husband/members of Group X. However, the OPW has not advanced any specific evidence to support its contention beyond providing summary details of the requests submitted by the applicant’s husband. In addition, the OPW said it appeared as though the applicant was acting in concert with others in an attempt to ‘weaponise the FOI Act’. However, it provided no evidence that this was the case. Furthermore, the OPW did not argue that there was a pattern to the various FOI requests made by the group members, or provide any evidence demonstrating that similar or the same wording was used. Indeed, from an initial review of the wording of the requests submitted by the applicant and her husband, while they all relate to Castletown House in general, the specific nature of the requests do not appear to significantly overlap or comprise repeated requests for the same information. In the circumstances, I am not satisfied that the OPW has provided enough evidence in support of its view that the applicant is acting in concert with her husband and/or members of Group X.
In relation to the other elements of section 15(1)(g), the main thrust of the OPW’s arguments in this case seems to relate to the level of interaction and the number of requests received from the applicant. I acknowledge that the applicant has made six FOI requests relating to Castletown House in a short space of time. Furthermore, I note that the OPW has argued that the work involved in processing the applicant’s (and the Group’s) FOI requests is disturbing its normal operations. If this was a concern for 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. However, the OPW did not rely on this exemption to refuse the request in this case.
In any event, in considering the OPW’s refusal under section 15(1)(g), it seems to me that I have to consider the volume and scope of the applicant’s 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. The Commissioner also takes the view that FOI bodies should be cautious in imputing motives to requesters when determining whether to refuse a request under section 15(1)(g). For example, FOI bodies should not assume that the fact that requests cause them administrative inconvenience is sufficient reason to refuse requests on the grounds that they are frivolous or vexatious.
In considering this, I am of the view that the context in which the requests were made can and should be taken into account.
In addition, the OPW has not disputed the applicant’s version of events where she indicated that she engaged with the OPW and attempted, on a number of occasions, to cooperate with the OPW’s apparent initial efforts to impose a fee to process this request. In the circumstances of this case, I am satisfied that it is appropriate to regard as relevant the fact that the applicant engaged constructively with the OPW’s initial proposal to refine the scope of her request in an effort to reduce or eliminate the imposition of a fee and indeed followed up on a number of occasions despite the lack of response from the OPW on the matter.
Having carefully considered the matter, it does not appear to me that six requests submitted by the applicant over a three-week period could be regarded as high, particularly as they relate to what appears to be a very contentious issue in the local community. I am satisfied that the applicant’s requests were not, by reasonable standards, excessive. It also seems to me that when a particular issue becomes a source of significant attention, it is not unusual or unreasonable for it then to become the subject of an increasing number of FOI requests.
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 applicant’s request under section 15(1)(g) of the FOI Act on the basis that the request was vexatious or formed part of a pattern of manifestly unreasonable requests from the same requester or from different requesters who appeared to have made the requests acting in concert. While I also note the number of requests made by the applicant within a relatively short timeframe, and that she made two requests on the same day in one instance, on balance, I find that the OPW was not justified in refusing the applicant’s request in this case under section 15(1)(g).
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 decision on the applicant's FOI request and to remit the matter to the OPW to consider the request afresh and to make a new, first instance, decision 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 she is not satisfied with the OPW's new decision in respect of her request.
I would encourage the parties to engage constructively with each other as part of the OPW’s fresh processing of the applicant’s request.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the OPW’s decision. I find that the OPW was not justified in refusing the applicant’s request under section 15(1)(g) of the FOI Act and I direct it to make a new decision on the request.
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.
Mary Connery
Investigator