Decision
Ms A and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-147959-D0M7D8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-147959-D0M7D8
Published on
Whether the HSE was justified in refusing the applicant’s request for access to records relating to her on the basis of section 15(1)(g) of the FOI Act
14 February 2025
The applicant in this case is a staff member of the HSE. She has been represented in her interactions with this Office by a third party. All references to the applicant should be read as referring to her or to her representative, as appropriate.
In a request dated 4 December 2023, the applicant made four FOI requests to the HSE. The HSE did not issue an original decision on any of the four requests and on 9 February 2024, she made an internal review request on foot of a deemed refusal in each case.
In the particular case under review, the applicant sought access to all records relating to her from May 2022 to present, to and from seven named HSE Senior Managers. In a decision dated 3 April 2024, the HSE refused her request in this case under section 15(1)(g) of the FOI Act, on the basis that it formed part of a pattern of manifestly unreasonable requests. On 4 April 2024, the applicant applied to this Office for a review of the HSE’s decision.
During the course of this review, I sought submissions from the HSE in relation to its decision in this case. On 17 and 27 January 2025, I wrote to the applicant’s representative, outlining the HSE’s position in this and the other three reviews being carried out by this Office in relation to the applicant’s applications for review. I invited the applicant to comment in each case. Neither the applicant nor her representative have responded to date in relation to this correspondence.
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 this Office and the applicant and to the submissions made by the HSE. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the HSE was justified in refusing the applicant’s request for access to records under section 15(1)(g) of the FOI Act, on the basis that her request forms part of a pattern of manifestly unreasonable requests from the same requester.
Before I consider the substantive matters in this case, I would like to make the following preliminary comment. The applicant expressed concerns about an individual within the HSE that made the decision on her FOI requests. However, as she is aware, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
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. While section 15(1)(g) identifies three specific characteristics which may lead to a decision to refuse a request, there may often be a degree of overlap. For instance, a request that is frivolous may also be vexatious, and what is frivolous and/or vexatious may also form part of a pattern of manifestly unreasonable requests.
Generally speaking, a request is considered by this Office 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. We have previously set out a number of non-exhaustive factors that we consider relevant in assessing whether a request may be categorised as frivolous or vexatious and regard those non-exhaustive factors as equally relevant in determining whether or not there is evidence of a pattern of manifestly unreasonable requests. This approach was endorsed by the Court of Appeal inGrange v Information Commissioner [2022] IECA 153. The factors include, but are not limited to:
• 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? Alternatively, are the requests repetitive in character or are they used to revisit an issue that has previously been addressed?
• 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 sequencing of the requests - does the volume of requests or appeals increase following the initiation of court proceedings by the institution or the occurrence of some other related event?
• The intent of the requester - is the requester’s aim to harass the public body?
It must be stressed that this list is non-exhaustive, nor is it necessary for all of the above factors to be present before a request can be refused under section 15(1)(g).
Moreover, the outcome or cumulative effect of the requests is also a relevant consideration. It is also appropriate to consider the requests concerned in the context of other requests made to the FOI body and in the context of the requester’s other dealings with the FOI body concerned. On that latter point, I note that in her judgment inKelly v 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. This view was endorsed by the Court of Appeal inGrange 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 grievances, as well the context of the FOI request 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 aforementioned High Court proceedings, O’Malley J. stated that in determining whether a particular application should be described as vexatious, the Information Commissioner is entitled by statute to use his discretion. She stated 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”.
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).
In its internal review decision and submissions to this Office, the HSE listed the FOI requests received from the applicant since 23 February 2022. It stated that her personnel and occupational health files had been released to her in response to these requests. It also stated that over 3,100 records had been released to the applicant in total, which took approximately 846 hours of staff time to process, which was a “significant resource cost” to the HSE. The HSE stated that a decision to refuse a staff member’s FOI request under section 15(1)(g) was not taken lightly. It said that it had made “every effort” to assist and provide the applicant with the records requested and to aid her in narrowing her requests.
The HSE indicated that it believed that the intent of the applicant was to burden the system and gave a number of examples in this regard. It referred to two cases where it stated that the applicant had not engaged with the HSE in terms of reducing or narrowing the scope of her requests. It also gave another example of a case where the applicant made an application for a review to this Office, despite not having engaged with the HSE, nor having made an internal review request. The HSE further stated that the applicant made an FOI request on 12 September 2022, seeking copies of records relating to discussions about her by various Senior Managers, but that she subsequently withdrew this request having confirmed that she made the second request solely because she was dissatisfied with the records released in response to her initial FOI request. I also understand that the HSE’s decision on the initial request had been the subject of a review by this Office, which was still ongoing at the relevant time.
The HSE stated that it had sent registered correspondence relating to two separate FOI requests to the applicant’s postal address provided when she made the requests. It stated that the applicant had refused to accept the correspondence, or to provide an appropriate alternative address in either case, which “delayed and disrupted” the FOI process. The HSE also stated that the applicant insisted that responses to her FOI requests containing confidential personal information be sent to a HSE work address, despite GDPR issues arising. It indicated that this meant that it was required to organise the hand delivery of correspondence relating to the applicant’s FOI requests. The HSE also stated that the applicant questioned the professionalism of its FOI decision maker and requested the reassignment of her FOI requests to another staff member.
In terms of the nature of the FOI requests made by the applicant, the HSE said that her requests were similarly worded and overlapping and that they sought records already released or within the scope of earlier requests. By way of example, it stated that the applicant made multiple requests seeking records held by the same individuals and made multiple overlapping requests seeking Occupational Health records which had already been released. It provided this Office with details of all the FOI requests made by the applicant or by her solicitor from 2022 to 2024. While I shall not set them out in detail here, I can confirm that I have regard to these details.
The HSE stated that the applicant’s requests often sought records covering a large timespan, e.g. records from 2015-2022. The HSE further argued that the number of FOI requests submitted by the applicant was excessive by reasonable standards, including multiple requests made within short time frames, e.g. four or five requests made within a number of days/weeks. It also referred to the total number of requests made, for example four requests made by the applicant in 2022 and eight in 2023.
Essentially, the HSE’s position is that it has made every effort to provide the applicant with records relating to her in response to her multiple requests, but that she continues to submit overlapping, repetitive requests seeking access to records already released, while failing to engage with the FOI body.
The applicant made no arguments in her application for a review to this Office and has made no submissions in this case.
As noted above, during the course of this review, I put the HSE’s arguments to the applicant and outlined the specific examples provided. I stated that having regard to the HSE’s submissions, and to the wording of the individual requests submitted by the applicant and her solicitor, it seemed to me that a reasonable person viewing the same material would come to the conclusion that her FOI request in this case was part of a pattern of manifestly unreasonable requests. I also stated that while she appeared to repeatedly seek access to records within the scope of earlier requests, she did not appear to make any arguments that additional records should exist. I invited the applicant to make submissions in response to the HSE’s arguments and my comments. However, no response had been received to date.
In telephone correspondence with this applicant in relation to her four cases generally, she indicated to me that there were court proceedings in train relating to the matters at hand. I am satisfied that the fact that an FOI request might be driven by a particular agenda, such as in the pursuit of a grievance with an employer, does not mean that the request is necessarily vexatious. For example, I see nothing wrong with a requester seeking access to records that the requester believes might assist in the pursuit of such a grievance or in court proceedings. However, that is entirely different to a situation where a requester seeks to use the FOI process itself as part of a strategy for prolonging a grievance with an FOI body or in an attempt to burden that body.
As noted by the HSE above, the refusal of a request under section 15(1)(g) is not something that should be undertaken lightly. As its Long Title states, the purpose of the 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 request. They are required to go through the rigorous processing requirements of the Act. However, this Office takes the view that the legislation assumes reasonable behaviour on the part of the requesters.
Having considered the repetitive and overlapping nature of the requests made by the applicant, and, in particular, the lack of engagement with the HSE, it seems to me that the purpose of the request in this case was not simply to allow the applicant to obtain information held by the HSE. Rather, I consider that the request was made as part of ongoing dispute with the public body in question. I note that on 7 February 2024, the applicant’s solicitor sought copies of all occupational health records relating to the applicant from 1 February 2013, to date. The HSE’s position is that relevant records up to December 2022 had previously been released to the applicant and that the applicant was unreasonably using the FOI process in this regard.
As noted above, the applicant has been given an opportunity to examine and comment on the substance of the HSE’s submissions in this case and no response has been received. In the absence of any argument or evidence to the contrary, it seems to me that any reasonable person would find the applicant’s repetitive and overlapping requests to be unreasonable, particularly where she has not made any substantive arguments that additional records should exist. Based on the above, I find that the HSE was justified in refusing the applicant’s request under section 15(1)(g) of the FOI Act on the ground that it formed part of a pattern of manifestly unreasonable requests.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision. I find that the HSE was justified in refusing the applicant’s request under section 15(1)(g) of the FOI Act, on the basis that it formed part of a pattern of manifestly unreasonable requests.
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.
Sandra Murdiff
Investigator