Decision
Mr X and the Body
From Office of the Information Commissioner (OIC)
Case number: 160563
Published on
From Office of the Information Commissioner (OIC)
Case number: 160563
Published on
Whether the Body was justified in refusing to grant a request for access to records concerning the applicant, on the basis that the request is frivolous or vexatious and that searching for and retrieving the relevant records could cause an unreasonable interference with or disruption of the work of the Body
Conducted in accordance with section 22(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
31 August 2017
The description that I can give of the circumstances of this case and the content of the records is very limited since disclosure of detail could identify the applicant and disclose personal information about him.
On 23 February 2016, the applicant made an FOI request to the Body, which referred to two matters of dispute he had had with it. He sought all records held by various departments within, and certain personnel of, the Body; all correspondence between the Body and another entity concerning one of the matters of dispute; all records held by certain other personnel that relate to him; minutes of particular committees of the Body that refer to the applicant; and any official correspondence including his name held officially in the Body.
The Body's solicitors wrote to the applicant's solicitors on 24 March 2016. The letter referred to a Settlement Agreement (the Agreement) that had been entered into between the applicant and the Body in [DATE DELETED], through their respective solicitors. It said that the FOI request concerned the matters the subject of the Agreement, and that the Body did not intend to respond to the request.
The applicant's solicitors disputed the position that making of the FOI request was precluded by the terms of the Agreement. On 13 July 2016, the Body's solicitors told the applicant's solicitors that, notwithstanding the Agreement, it had considered the request, and determined it to be very broad and unspecific in its scope. It said that section 12(1)(b) of the FOI Act requires a requester to give sufficient particulars to enable the FOI body to identify the requested records. According to the letter, processing the request in its current format would cause a substantial and unreasonable interference with the Body's work and could be refused under section 15(1)(c) of the FOI Act as a result. It said that the Body would "consider a revised request providing sufficient particulars which does not cause substantial and unreasonable interference with [the Body's] work."
On 14 September 2016, the applicant's solicitors made a revised request to the Body. It is too long to recite in full. It contained 10 separate parts that sought "[a]ll correspondence or memorandum" between various named parties regarding his time working at the Body and the matters of dispute. It also sought "a full unedited copy" of the file held in the applicant's name in the Body's HR department, including any correspondence sent to it by a named member of staff of the Body.
The Body, through its solicitors, issued its decision on 12 October 2016. It said that, notwithstanding the Agreement, it had considered the request, but considered it to be extremely broad in scope and to cover a large number and range of records. The Body refused to grant the request under section 15(1)(c) of the FOI Act, on the basis that searching for and retrieving the relevant records would cause a substantial and unreasonable interference with, and disruption of, its work. It also said that, given the fact of the Agreement and the nature of the dispute that led to it, it considered the request to be frivolous, vexatious and unreasonable in nature. It said that it was thus also refusing the request under section 15(1)(g).
The applicant sought an internal review of this decision on 28 November 2016. On 15 December 2016, the Body's internal review decision affirmed the basis for its earlier refusal of the request. On 19 December 2016, the applicant sought a review by this Office of the Body's decision.
I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above; and to correspondence between this Office, the Body, and the applicant. I have had regard also to the Agreement and to the provisions of the FOI Act.
This review is confined to whether or not the Body has justified its refusal, under sections 15(1)(c) and (g) of the FOI Act, to grant the applicant's request. I cannot have regard to any other matters, including how the Body treated the applicant's FOI requests.
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:
The applicant's position is that the Body's decisions are not objective or fair. He says his requests are not motivated by frivolous or vexatious grounds and that they arise from his legitimate and Constitutional entitlement to protect his professional reputation and good name from acts or omissions by the Body that sought to damage him after he stopped working for it. He wants to be able to assure others that he is entitled to his good name. He says that the Body has damaged, and continues to damage, his reputation. He says he considers the Agreement to have been extracted under duress and to be null and void, and also that certain acts by the Body breached the Agreement. The applicant also says that the Body is refusing to grant his requests in order to cover up misconduct by its senior management. He says at no point did he concede that he would not try to expose the Body's behaviour.
The Body says that the applicant's solicitors approached it to resolve the matters of dispute, further to which the terms of the Agreement were negotiated and entered into. It does not accept that the Agreement was entered into under duress, or that it is null and void. It says that the Agreement is legally binding and it is not open to one party to it to reopen matters that it resolved. The Body considers the request to be frivolous and vexatious; that it is seeking to accomplish a motive unrelated to the FOI process; and, given the existence of the Agreement (and the context in which it was concluded), that it was made in bad faith.
In the circumstances of this case, I consider that the purpose of the request is a key factor in relation to whether it has been made in bad faith and whether it amounts to an abuse of process. This Office's role does not extend to examining, or making any findings on, whether the Agreement is valid, whether the Body may have breached it, or whether the applicant is breaching it by making this FOI request. Such issues are matters for the Courts. However, the fact that the applicant and the Body negotiated and entered into the Agreement is, in my view, strong evidence of a reasonable belief on the Body's part that the two matters of dispute had been concluded. The revised request (and its earlier version) was made after the Agreement had been entered into and clearly seeks records concerning the matters of dispute to which the Agreement relates.
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).
The applicant says he is seeking to ensure that the Body can be held accountable for its actions. I accept that this can be seen as a legitimate reason for seeking access to records, given that ensuring the openness and accountability of an FOI body is one of the purposes of the FOI Act.
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At the same time, many of the applicant's stated reasons for making the request seem to me to indicate that his objective is to revisit the matters of dispute which were the subject of the Agreement. Given that those matters were apparently concluded on foot of the Agreement, I consider that the applicant is using FOI to try to accomplish an objective unrelated to the access process.
In addition, I have considered whether the request as made can be held to be excessively broad or unusually detailed in its scope. The Body says that the revised request is very similar to the original, is double its length, seeks the same ranges of records for the most part as the original, and also contains new parts. The applicant has been made aware of the Body's view as well as the considerable time it says it would have to spend searching for and retrieving records relevant to his request. While I note that the applicant does not accept the Body's assessment of the work involved in complying with his request, I am not at this stage considering whether the Body has justified its refusal of the request on the basis that it is unreasonable. Rather, I am confining myself here to examining the factual matters of the nature and scope of the request.
The request of 14 September 2016 contains a considerable level of detail as to the requested records. However, I accept that such details were provided in response to the Body's request for better particulars of what the applicant was seeking.
While the request of 14 September 2016 purports to revise the applicant's February request, I accept that it continues to seek a very broad range of records. For instance, one part covers all correspondence and memoranda from the HR Department to any officer "concerning [the applicant's] employment". Various parts refer to records held in a number of offices/departments of the Body. While parts of the request specify various personnel of the Body to whom, or from whom, various correspondence may have issued, five parts of the request refer to correspondence to or from "any officer" of the Body. Another part refers to correspondence to or from "any other party, internal or external". The request also refers to contacts with six parties external to the Body. It does not attempt to limit the time range of relevant records. In this regard, I note from his submission to this Office of 19 April 2017 that the applicant worked at the Body for a considerable number of years. In my view, the modified request would be seen as excessively broad and burdensome by any reasonable person.
The Body is not claiming that the number of requests made by the applicant is excessive. Neither has it been alleged that the applicant's aim is to harass the public body. Therefore, I will not consider those factors any further.
Conclusion
While the applicant has referred to what can be seen as a genuine reason for making the request, his other reasons seem to me to indicate a wish on his part to revisit the matters of dispute and accomplish an objective unrelated to the access process. I also consider the request made to be excessively broad and burdensome. Having regard to these particular factors, I find that the Body's decision is justified since the request is frivolous or vexatious and one to which section 15(1)(g) applies.
Section 15(4)
Given my decision on section 15(1)(g), there is no need for me to make findings in relation to section 15(1)(c). Generally speaking, this provision enables an FOI body to refuse to grant a request where retrieving and examining the relevant records would cause a substantial and unreasonable interference with or disruption of the body's work.
However, I wish to draw the Body's attention to the requirements of section 15(4), which provides that section 15(1)(c) shall not be applied unless the FOI body has assisted, or offered to assist, the requester to amend the request for re-submission such that it no longer falls within section 15(1)(c). Section 15(4) must also be complied with where an FOI body is considering refusing a request under section 15(1)(b) because it does not consider the request to meet the requirements of section 12(1)(b).
The Body's Description of Appeal Rights
The Body's decision of 12 October 2016 referred to section 21 of the FOI Act in so far as the applicant's rights of internal review are concerned. Given that the decision was being sent to the applicant's solicitors, it would seem the Body considered that the applicant's solicitors should have been able to properly advise their client of his rights of review. This may well be true but it does not absolve the Body from its obligation to comply with section 13(2) of the FOI Act which sets out what all decisions "shall specify". In particular, section 13(2)(f) sets out what a decision must contain regarding rights of review.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Body's refusal of the applicant's request on the basis that it is frivolous or vexatious and one to which section 15(1)(g) applies.
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.
Elizabeth Dolan
Senior Investigator