Decision
Mr Y and Údarás na Gaeltachta
From Office of the Information Commissioner (OIC)
Case number: OIC-146595-H4K3G7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-146595-H4K3G7
Published on
Whether ÚnaG was justified in refusing access, under section 15(1)(g) of the FOI Act, to various records relating to a grievance the applicant has with ÚnaG on the ground that the 11 requests are vexatious and form a pattern of manifestly unreasonable requests
21 November 2025
It would be useful to first set out the background to this case. The applicant attended a launch in a named ÚnaG facility (the facility) in November 2022 and a presentation was planned for the event. There were technical issues with the sound system on the day and the applicant raised the matter with the staff member overseeing the event. The staff member was unhappy with the manner of her interaction with the applicant and subsequently reported the matter to her manager. Sometime after that, the applicant was asked to attend a meeting with the staff member’s manager and another ÚnaG staff member, but it seems that he was not notified beforehand that the meeting was concerned with allegation(s) made against him. Following this meeting, the applicant engaged in significant amounts of correspondence with ÚnaG regarding the event, the meeting, and the allegation(s) made against him.
Subsequently, over the space of five days from 26 June 2023 to 30 June 2023, the applicant submitted 11 separate FOI requests to ÚnaG. On 26 June 2023, he submitted two requests, one for records relating to the event and one for records relating to his interactions with the staff member and the allegations made against him. On 27 June 2023, he submitted a third FOI request for records relating to the meeting he attended and subsequent communications. On 28 June 2023, he submitted two further FOI requests, both relating generally to his interactions with the ÚnaG staff member and including a broad range of records. On 29 June 2023, he submitted five further related FOI requests for various records held by five named staff members of ÚnaG. On 30 June 2023, he submitted a further request for records relating to the use and costs of the facility.
On 7 July 2023, ÚnaG issued a consolidated decision, in which it refused all 11 FOI requests under section 15(1)(g) of the FOI Act on the ground that they were vexatious and formed part of a pattern of manifestly unreasonable requests amounting to an abuse of process or right of access. It said it was also in receipt of numerous correspondences from the applicant in recent months and it considered that this also formed part of the pattern of behaviour. It said that it was, however, willing to provide the applicant with key records regarding an alleged incident mentioned in part(s) of his FOI requests. It said it was willing to assist him in identifying any key records he required in relation to the grievance process he had started with ÚnaG. It advised the applicant that he should contact a named staff member only in relation to the grievance process, and contact only the FOI email address in relation to any FOI matters. It said correspondence to any other person(s) in ÚnaG would not be acknowledged.
ÚnaG’s FOI Officer subsequently contacted the applicant and discussed the matter with him, following which, on 12 July 2023, he submitted a further three-part FOI request to ÚnaG for all records relating to allegations/reports/complaints made by the staff member between two specified dates, and all records/minutes/accounts of the meeting by the staff member’s manager and the other ÚnaG staff member who attended. This request was granted on 9 August 2023. ÚnaG stated in correspondence with this Office that it did not receive an application for an internal review of the decision made on that request.
Prior to the issuing of this further decision, the applicant formally sought an internal review of the refusal of the 11 FOI requests on 3 August 2023. ÚnaG subsequently affirmed its refusal of all 11 requests on 24 August 2023. Among other things, it noted that while the applicant had stated that he had sought to reduce the workload and cost to ÚnaG in fulfilling his requests by making a series of specific requests, it was of the view that while the objective was sincere and well-meaning in its intention, it had the opposite effect in creating an unreasonably increased workload on ÚnaG through the creation of excessive requests.
On 20 February 2024, the applicant applied to this Office for a review of ÚnaG’s decision. During the course of the review, the Investigating Officer provided the applicant with details of ÚnaG’s submissions and invited him to make submissions on the matter, which he duly made.
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 outlined above and to the submissions made by both parties during the course of the review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether ÚnaG was justified in refusing, under section 15(1)(g) of the Act, the applicant’s 11 FOI requests for various records relating to the matters described in the Background section of this decision on the ground that the requests were vexatious and/or formed part of a pattern of manifestly unreasonable requests.
Section 15(1)(g) provides for the refusal of a request where the FOI body considers that the request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests from the same requester. 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. This approach was endorsed by the Court of Appeal inGrange v Information Commissioner [2022] IECA 153 (the Grange judgment). The factors include, but are not limited to:
1. the number of requests made - are they considered excessive by reasonable standards
2. the nature and scope of the requests - are they excessively broad and varied in scope or unusually detailed?
3. 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?
4. the intent of the requester - is the requester's aim to harass the public body?
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 in Kelly v the Information Commissioner [2014] IEHC 479 (the Kelly judgment), 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.
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 request, a requester's motive for making an FOI request is relevant when considering the application of section 15(1)(g). In the aforementioned Kelly judgment, 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 "[t]here 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 may be considered vexatious, the fact that a requester is unwilling to co-operate with the FOI body may be evidence of bad faith on the part of the requester. Conversely, the fact that a requester is willing to co-operate with the FOI body may be evidence that the request is not vexatious. However, there may be circumstances where a request can be considered to be vexatious even in circumstances where the requester has at times co-operated with the FOI body.
When considering whether a request forms part of a pattern of manifestly unreasonable requests in accordance with section 15(1)(g), the question I must consider is 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) of the FOI Act.
It is apparent from the submissions of both parties that each has different interpretations of the subsequent request made on 12 July 2023. In its submissions, ÚnaG said that following its phone call with the applicant, it decided to accept a new, separate request incorporating what he sought in the initial 11 requests because the request concerned personal information and that he submitted the new three-part request on 12 July 2023.
On the other hand, the applicant said that he was taken aback that, having already made a decision to refuse his requests as 'vexatious and frivolous' and having presented him with the option to pursue an internal review, ÚnaG had then offered to provide him with 'key documents', even while he was pursuing an internal review at the same time. He said he had thought that strange, that an adjudication process makes a decision, and then, while the internal review of that decision was being processed it offered essentially to reconsider elements of the original request. He said that, as he was distressed at not knowing what the original allegation against him might contain, he felt he had no choice but to accept ÚnaG’s offer to reconsider certain elements of his request separately.
In his correspondence with this Office, the applicant disagreed with UnaG’s position that the separate FOI request submitted on 12 July 2023 was one of reduced scope. He said that what it had agreed to in his phone conversation with ÚnaG was that it would address a few of the elements of his requests, for starters, and then see how they might progress from there. He said he always presumed that this would end up as an incremental process whereby in time all of the elements of his requests would be granted. He said that was the basis of his 12 July request modification. He said he was of the view that his original suite of requests, broken down into clear manageable chunks, still stood. He said that it was wrong for ÚnaG to have continued to process his requests when in fact his case or appeal had already been 'seized' by the internal review process. He said that he effectively had no say in this wrongful implementation of procedure, and this was dictated by and controlled by ÚnaG.
In its submissions of 3 May 2024 to this Office, ÚnaG said it was of the view that the applicant was seeking to pursue a grievance with ÚnaG by using the FOI Act which it considers to be an abuse of the right of access. It said there have been countless emails, phone calls and meetings with the applicant since the incident at the event. It said the applicant has inundated it with FOI requests, Subject Access Requests (SARs) under data protection legislation, and numerous emails on the same matter and seeking replies to numerous questions which had taken up an extraordinary amount of time and resources to respond to. It said it had accommodated the applicant through various channels, emails, phone calls, meetings but that he is still not satisfied. It said the FOI Officer had a phone conversation with him for over an hour after receiving the 11 FOI requests which resulted in him reducing the requests from 11 to three. It said the Director of Regional Development, Community & Language Planning who was the internal reviewer also had a lengthy conversation with him before he made his decision to uphold the initial decision to refuse the 11 requests. It said the Director of Corporate Services travelled from Galway to Donegal to meet with him and spent 3.5 hours with him in an attempt to understand and come to an agreement on his grievance but was unsuccessful. It said it has spent numerous hours on this one applicant between FOIs, SARs, replying to emails, phone conversations and meetings and that it can only conclude that the intention of the applicant is vexatious and forms a pattern of manifestly unreasonable requests.
ÚnaG said its decision to refuse the FOI requests under section 15(1)(g) was made in the context of ÚnaG receiving only nine FOI requests in total between January and June 2023 in comparison to the 11 FOI requests submitted by the applicant over a period of five days at the end of June 2023. It said it received a total of 34 FOI requests in 2023, and 14 of these were from the applicant from June 2023 onwards. It said his requests amounted to 41% of the total number of FOI requests received. It said it received a total of four requests for the rectification and amendment of records from the applicant within a short period of one hour in October 2023. It said that of the three SARs it received in 2023, the applicant had submitted two of these in July and August 2023. It said that the applicant was given all personal data held by ÚnaG up to the date of these requests. It said that it received a third SAR on 18 April 2024 from the applicant, and this was the first SAR received by ÚnaG in 2024.
ÚnaG said that to the date of its submissions, it had received more than 280 emails from the applicant over an 18-month period. It said that emails were sent to approximately 13 employees as well as the generic email addresses for FOI, SAR and ÚnaG general info. It said that the applicant copied third parties in most of the emails that he sent to the FOI Officer. It said that, in its view, this was unnecessary and vexatious, given that it is clearly set out that applications for records are to be made to the FOI Officer using the FOI Officer-specific email address. It said the applicant has been advised on numerous occasions to make his formal requests through the appropriate email. It said that it would consider the level of engagements outlined excessive as the applicant is neither a client nor an employee of ÚnaG.
It said that in its efforts to ensure that the applicant got whatever information he said he required in relation to the original incident, it worked with him to reduce his request in July 2023 from 11 to three requests. It said it thought that having satisfied his request for the records, this would be the end of the matter but that he has, however, continued to write to numerous officials, make repeated FOI and SAR requests, all of which relate to the same matter. It said all of the requests are repetitive in character and are used to revisit an issue which has previously been addressed.
ÚnaG said it considers the applicant to be using the FOI Act to pursue his grievance relating to the incident in November 2022. It said it offered him meetings, had phone calls, responded to SARs and previous FOI requests but that he continues to use the Act to pursue the same matter. It said it considers that the applicant is seeking to pursue a grievance by using the FOI Act and the Data Protection Act which it considers to be an abuse of right. It said some of the emails sent to its staff are lengthy with references to other links and commentary, requiring an inordinate amount of time to analyse and respond to. It said the intent of the applicant could be construed as an attempt to harass the government or to break or burden the system.
In its subsequent submissions of 27 May 2024 in response to a request from the Investigating Office for further clarifications, ÚnaG said the 11 requests were refused under section 15(1)(g) as they were received within a 5-day period and they were all based on the alleged incident that took place at the event in November 2022. It provided details of the requests made. It also proved details of more recent engagements the applicant had with it. It said it believed the applicant contacted all 11 board members directly (by email) with the same grievance. It said it received a SAR request from the applicant on 15 May 2024, again revisiting the same topic despite already having dealt with two SAR requests where he was given all the information on 25 August 2023 and again on 6 September 2023. It said it received a FOI/SAR request on 21 May 2024, again revisiting the same topic. It said that included with this request was an attachment of an audio file entitled ‘[Relevant staff member] Udarás lying on 13th Feb 2023’. It said there was no benefit in attaching the audio file with the request and that it was uncalled for. It said it believed the audio file was also sent to the board members. It said its Chief Executive was preparing to issue a letter to the applicant stating that it would be unable to provide any further assistance regarding his complaints and communications.
ÚnaG provided a schedule of the requests and SARs it received from the applicant to date, which included the 11 requests at issue, the request of 12 July 2023, four SARs, and seven further FOI requests.
In the course of the review, this Office’s Investigating Officer asked the applicant for information regarding the further FOI request that he made on 12 July 2023 and clarification regarding the making of the application for internal review. In his response, the applicant said that the request was a follow-up to his phone conversation with the ÚnaG FOI Officer. He said that by that time, he had already been unnecessarily stressed and anxious for over eight months since the meeting with ÚnaG officials. He said he was called to that meeting without any prior notice or knowledge of there being a complaint against him. He said he was not provided with the details of the specific complaint against him either before, during, or after the meeting. He said the basics of due process and fair procedure were not afforded to him and that “this whole long data extraction process by [him] seeks to protect [his] reputation by surfacing the facts of what has occurred during this debacle”. He provided this Office with a copy of a letter of apology by the ÚnaG Company Secretary to his son which he described as “identifying some of the failures by [ÚnaG] officials”.
In his submissions, the applicant outlined a number of issues he had had with ÚnaG and made a number of comments on a lack of response from certain named ÚnaG staff members. He said that he had submitted the FOI requests in order to obtain information that was not being provided to him on foot of his email correspondence with ÚnaG. He said that after eight months of living with the stress of not knowing the details of the complaint made against him, he said he had “been led a merry dance by a [named ÚnaG Official] for months, her purporting to be progressing and managing [his] complaint about how [he] was mistreated, and then suddenly, having undertaking (sic) to deliver of specific items, she just ghosted [him], leaving [him] no further along in seeking necessary information”. He said phone conversations with the Official are recorded and are available as evidential material. He added that it was only in January 2024, some 14 months after the alleged incident in November 2022 that he was finally provided with a translated version of the original complaint. He said, therefore, that his turning to FOI to seek information was a last resort “after all of [the] obfuscation and obstruction, as a corporate behavioural fractal within the [ÚnaG] culture”.
As noted above, the applicant said that he had engaged in a data extraction process to seek to protect his reputation by surfacing the facts of what had occurred during the events outlined. He said that ÚnaG had failed to give him due process in relation to the allegation made against him. He said that by June 2023, he had still not been made aware of the details of the complaint made against him, and the member of staff in ÚnaG that he had been engaging with suddenly ceased contact with him with no explanation some months prior. As also noted above, he said that he had engaged in the FOI process to seek information as a last resort. He said his 11 FOI requests were carefully prepared as a complete interconnected suite. He said that by breaking down the request into individual-specific items, his intention was to minimise the expenditure of effort by ÚnaG, thus curtailing costs by easing rather than increasing the burden of work involved. He said his decision to copy each specific individual with a copy of the request that involved them was consistent with his objective of seeking the greatest efficiency, fastest turnaround and lowest cost.
The applicant added that despite refusing his requests as ‘vexatious’, ÚnaG had offered to provide him with ‘key documents’ at the same time as offering him the opportunity to seek an internal review of the refusal. He said he found that strange, but as he was unaware of the nature of the original allegation against him, he felt he had no option but “to accept whatever crumbs this apparently untouchable corporation was offering”. He said he had agreed with the ÚnaG FOI Officer that a few of the elements of his requests would be addressed for starters and they would then see how they might progress from there. He said he always presumed that this would end up as an incremental process whereby in time all of the elements of his requests would be granted. He said that was the basis of his 12 July 2023 request modification. He said his original suite of requests, broken down into clear manageable chunks, still stood.
He said that he was not contacted by ÚnaG prior to its refusal under section 15(1)(g) of the FOI Act for clarification, discussion, or refinement of his 11 FOI requests, and this should have taken place if ÚnaG was of the view that his requests were voluminous. He said he had not had a say in the implementation of the FOI process by ÚnaG, and that to accept the FOI request of 12 July 2023 to be a refinement of his 11 FOI requests would be incorrect.
Following receipt of the applicant’s submissions, the Investigating Officer made further queries to ÚnaG regarding its submissions and the offer to provide the applicant with ‘key documents’, amongst other things.
In a response dated 19 September 2024, ÚnaG provided further submissions, along with a schedule of communications with the applicant that took place between November 2022 and June 2023.
In its further submissions, ÚnaG said that it would receive follow-up emails within a couple of days of receiving the first email, thereby not allowing an opportunity to address the applicant’s issues or allowing for the normal course of work. It said that at times, the first email would arrive on a Thursday or Friday with a follow-up reminder on the following Monday or Tuesday. It said an example of this is when the applicant sent an email on Thursday 25 May 2023 and by Monday 29 May 2023 he had sent a second reminder. It said that another example is where the applicant was given a timeline of the end of June for receiving the translated Code of Conduct by a named member of staff, yet he emailed another named member of staff on 26 June seeking a copy. It said the applicant received the copy from the first named member of staff on 29 June. It said there was another time when the applicant emailed ÚnaG looking for the contact details of the FOI Officer, when they had been clearly stated on ÚnaG’s website. It said that while ÚnaG endeavours to respond to all correspondence in a timely manner, it believes that it is unreasonable to expect an answer in such a short space of time, especially when the working day still consists of its other commitments such as normal work deadlines, meetings and travel. It said it shows unreasonable behaviour and unreasonable expectations about the resources that the organisation has available to it. ÚnaG said there were also instances where the applicant would include a number of people in his emails, also leading to increased workload and undue stress especially when the issue did not relate to their department/work.
ÚnaG said that the record containing the original complaint was created in Irish as it is the working language of the organisation and is one of Ireland’s official languages. It said that it complies with its statutory duties regarding the provision of specified documents in both official languages. It said this record had been released to the applicant on 9 August 2023. It said the applicant requested a translated version of the incident report on 12 October 2023. It said that, as the Director of Corporate Services was not a qualified translator, he was reluctant to translate any documents to English. It said that, however, in the interests of goodwill the Director agreed to send a copy of the report to external translators for translation. It said that this is not a service that it normally provides, but in this instance an exception was made. It said that the Director forwarded the translated copy of the incident report to the applicant on 19 October 2023.
ÚnaG said that the continuous requests and other communications to both the FOI Office and across the agency represent a pattern of unreasonable behaviour on the part of the applicant. It said that a total of 125 emails were exchanged between November 2022 and June 2023. It said that, of these, 86 emails were sent by the applicant to ÚnaG, and 39 emails were sent by ÚnaG to the applicant. It said that, additionally, two telephone conversations took place during this period. It said that the applicant subsequently made a number of formal complaints against a number of staff members of ÚnaG.
ÚnaG added that the decision to refuse the applicant’s requests was not made solely on the basis that it received 11 FOI requests within a 5-day period from the applicant, but that it also considered the number of correspondences that it had with the applicant within the previous eight months. It said that, when it viewed everything as a whole, taking O’Malley J.’s judgment in the Kelly judgment into consideration, where she 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, it was of the view that all of the communications that ÚnaG has had with the applicant were relevant. It said that it was of the view that it formed part of a pattern of conduct that amounted to an abuse of process or an abuse of the right of access. It said that the applicant had also recorded certain phone calls and a meeting with staff of ÚnaG in 2023, without notifying the members of staff at the time, and it considered this to be inappropriate behaviour.
It said that the applicant was in contact with multiple departments within ÚnaG simultaneously and it was all about the same issue repeatedly, an issue which it felt has been addressed. ÚnaG said it has accommodated the applicant through various channels, emails, phone calls, and meetings, but the applicant is still not satisfied. It said that its view is that the applicant is seeking to pursue a grievance with ÚnaG by using the FOI Act.
ÚnaG further said that the correspondence with the applicant did not finish on 30 June 2023. It said that the applicant continued to email ÚnaG until 28 May 2024, when the CEO of ÚnaG took the decision to write to the applicant to state that, as it had exhausted all avenues to resolve his concerns, he should escalate his concerns to an external authority. It said that, in response to this, the applicant sent the CEO (and cc’d 12 others both from within and outside of ÚnaG) an email that included a copy of a recording titled ‘[Staff member name] lie 6th March 2024’, which it said the applicant had recorded during his meeting with a former specified Director without that former Director’s knowledge or consent, along with a copy of the email that he had sent to the members of the Board of Directors of ÚnaG. It said that the email that the applicant had sent to the Board members included copies of recordings of a phone call with another named member of staff, recordings which it said the applicant titled ‘[staff name abbreviation] lying’.
It said that between November 2022 and June 2023, there was a total of 188 interactions with the applicant across five departments. It said that this included instances where a number of people might have been cc’d within the one email.
As noted above, the Investigating Officer provided details of ÚnaG’s submissions to the applicant and invited him to make submissions to this Office. The applicant subsequently made submissions on 13 February 2025 and 18 February 2025.
In his submissions of 13 February 2025, the applicant said that he was shocked at the submissions made by ÚnaG that vilified him personally, and when he asked others to read and review the submissions, they considered it an intentional character assassination attempt on him.
Regarding the appropriateness of recording phone calls, the applicant said that he had recorded phone calls with a member of ÚnaG staff in 2023 due to the nature of the meeting he was invited to attend in December 2022, and said that this action is lawful and disputes ÚnaG’s submission that this action should be considered evidence of vexatiousness. He also said that there was no attempt by ÚnaG to come to an agreement with him during the meeting on 6 March 2024, rather “some amateurish nebulous hope that [he] might just go away”.
The applicant said that he had made the FOI requests to try and establish the facts of what took place in relation to the complaint made about him and what process was used as he had not been provided with any meaningful information by June 2023, and this motivation should not be considered vexatious. He said that the FOI Act does not state that it is prohibited for citizens to seek information under the FOI Act that they may then use to pursue a complaint/grievance.
The applicant said that ÚnaG in its submissions has concentrated on referring to interactions the vast majority of which took place after it had refused his FOI requests. He said that the decision to refuse his requests could only have been made in the context of whatever interactions had taken place up until 7 July 2023. He said that its reliance on interactions post-dating the refusal of his requests should be disregarded.
The applicant said that when he finally did get some information regarding the handling of the complaint against him and his complaint regarding the meeting, it indicated that the member of staff handling his complaint was not an independent impartial party and had in fact sought the creation of the incident report that ÚnaG had refused to provide to him on foot of his FOI requests in June 2023.
In his further submissions of 18 February 2025, the applicant said that he had reviewed the relevant judgments, and he could not see where in her judgment that O’Malley J. specifically considers the markets/arguments and/or scope of the meaning and application of the term ‘context’. He said that, as he reads it, there seems to be a determination of the use of ‘context’ only by the Information Commissioner in that judgment, and he stood to be corrected and would benefit from, appreciate and value if this Office, or ÚnaG could correct his interpretation of this point. He said that, furthermore, in that case, the issue was of the Information Commissioner employing context in relation to an appeal to O’Malley J. by Kelly, which in terms of timing would explain why she might consider the overall history of Kelly’s various applications/appeals/litigations etc, because they had already occurred prior to the appeal to the Information Commissioner. The applicant said that, in direct contrast, in his case the decision of ÚnaG to refuse his FOI requests could not consider, rely upon, or even be cognisant of subsequent interactions between himself and ÚnaG, which ÚnaG seemed to rely heavily upon in its submissions, simply by virtue of the fact that those interactions had not yet occurred at the date of the refusal (7 July 2023).
He further said that, when reviewing the test applied by O’Malley J. for determining whether an application is ‘frivolous or vexatious’, he was of the view that his FOI requests were clearly neither ‘futile, misconceived or bound to fail’. He said that this was evidenced by the fact that after the issuing of the refusal, and while he was seeking an internal review decision, ÚnaG provided information, which the applicant said should/would not have been released to him if his request was actually ‘futile, misconceived or bound to fail’. The applicant said that his experience in all his dealings with ÚnaG has surfaced a corporate philosophy of defensiveness and deliberate opacity versus transparency. He said his experience had also surfaced a misuse of public funds as ÚnaG had employed an external FOI consultancy firm to find ways to frustrate his genuine efforts to seek information that should have been released to him on foot of his FOI requests.
The applicant said that, in refusing his FOI requests as vexatious, ÚnaG were engaging in an attempt to cover up the misconduct of its staff. He said that, in the meeting of 6 March 2024, which post-dates the FOI requests being refused, the staff member attending on ÚnaG’s behalf said to him that the entire matter had been mishandled, and this directly contradicts the submissions made to this Office by ÚnaG. He said that ÚnaG had also upheld the complaints made by him against certain ÚnaG staff.
The applicant said that the reference to ‘multiple meetings with him’ by ÚnaG is misleading, as one of the meetings was the meeting that took place in December 2022, and the next meeting did not take place until 6 March 2024, long after he had made his FOI requests. He said that, similarly, the reference by ÚnaG to ‘countless’ emails and phone calls was also misleading.
He said that he had broken up the records he sought into multiple requests in an attempt to make it easier to provide the relevant records, and if there was any issue with his requests, the FOI Officer/ÚnaG should have contacted him to discuss reframing or modifying his request to make it manageable, but he was not contacted at any stage and was therefore not informed that there was any issue with his requests until after the refusal of all of them under section 15(1)(g) of the FOI Act.
It seems to me that the key point made by the applicant’s argument is that he was treated unfairly by ÚnaG in its handling of the complaint made against him following the event that took place in November 2022 and that he made the 11 requests at issue in an effort to establish the facts surrounding the complaint that was made against him and to obtain information that was not being provided to him on foot of his email correspondence with ÚnaG. He further argued that the vast majority of the interactions referenced by ÚnaG took place after it had refused his FOI requests.
I should say at the outset that the fact that an FOI request may be driven by a particular agenda does not mean the request is necessarily vexatious. It seems to me that it would be entirely reasonable for an individual who has a grievance with an FOI body to seek to obtain access to relevant records to determine the legitimacy of and, indeed, to pursue, that grievance. The making of an FOI request in such circumstances is, in my view, entirely legitimate. However, this does not mean that such requests can never be regarded as vexatious and that the making of multiple requests can be unfettered. It seems to me that a key consideration is whether the manner of use of FOI to pursue that agenda is reasonable. The FOI Act demands that FOI bodies meet very high standards in dealing with requests. They are required to go through the rigorous processing requirements of the Act. However, this Office also considers that the legislation assumes reasonable behaviour on the part of requesters. The fact that an individual may consider that he or she has a legitimate grievance or that the matter has had a serious impact does not mean that there can be no limits to the use of FOI in the pursuit of that grievance. In the Grange judgment referenced above, the Court of Appeal found that an FOI request may be vexatious even if the requestor can point to a particular public interest or is pursuing a particular agenda. It also found that this Office is not confined to considering the specific request and that it is entitled to consider the wider context in which the request was made. It 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”.
On that point, ÚnaG said that the first FOI requests received on 26 June 2023 was not its first correspondence with the applicant. It said he had “bombarded” it with numerous correspondences since December 2022. It provided a schedule of correspondence exchanged between 18 November 2022 and 30 June 2023, comprising 86 emails the applicant sent to various officials within ÚnaG and 39 responses from ÚnaG, a meeting and two telephone calls. I am satisfied that it is appropriate to have regard to this background context when considering whether ÚnaG was justified in refusing the 11 requests at issue.
On the matter of the 11 requests, I have set out above some factors that this Office deems relevant in assessing whether a request may be categorised as vexatious or evidence of a pattern of manifestly unreasonable requests. As I have explained, it would not be unreasonable for a requester to make FOI requests to access records to pursue a grievance. Indeed, it may occasionally be the case that a first request could trigger subsequent requests for related records identified on foot of the original request. In this case, however, the making of 11 requests, some of which are detailed, quite broad, and in some cases overlapping, in such a short space of time, and against a background of extensive prior engagements on the same subject matter, is, in my view, excessive. I have no doubt that the requests were trigged by the applicant’s concerns about the manner in which ÚnaG dealt with him in relation to the complaint made. However, it seems to me that the 11 requests, when taken together, go well beyond a simple attempt to ascertain the relevant facts of the matter. I note, for example, the following:
• Request reference ASF/ÚnaG/395 is a four-part request that is concerned with the arrangements made in respect of the event in November 2022 that gave rise to the complaint, and includes, among other things, a request for details of the number of placings ordered for refreshments for the event;
• Request reference ASF/ÚnaG/396 is a three-part request for records relating to the applicant’s interaction with the relevant staff member at the event that gave rise to the complaint. It includes a detailed and broad request for “All records, with relevant date/time stamps of any involvement/Communication/access to/sights of any or all records or discussions about” the interactions between the applicant and the relevant staff member at the event and subsequently:
• Request reference ASF/ÚnaG/398 is an eight-part request that includes records sought under request reference ASF/ÚnaG/399, namely records of communications between two named staff members of ÚnaG;
• Many of the applicant’s requests included requests for date- and time-stamped records, while a number of his requests were for records of communications he himself had with certain ÚnaG officials;
• Overall, the 11 requests contain 44 separate parts.
In my view, the number of requests made in such a short space of time and the nature and scope of the requests are such that they are, in my view, excessive both in number and in nature. On the matter of the dispute between the parties as to whether the subsequent request of 12 July 2023 was to replace the 11 requests or, as the applicant claims, a start to the process of granting his requests, I find it difficult to accept that ÚnaG’s offer to process the request could reasonably be regarded as a start of a process in circumstances where it had refused the 11 requests under section 15(1)(g). Indeed, I note that in its decision letter, it indicated that notwithstanding its decision, it was willing to provide him with any key records he might require in relation to his pursuit of a grievance process he had commenced.
On the matter of the purpose of the requests and the intent of the requester, I am willing to accept the applicant’s contention that by breaking down the request into individual-specific items, his intention was to minimise the expenditure of effort by ÚnaG, thus curtailing costs by easing rather than increasing the burden of work involved. However, it seems to me that this ignores the reality of the burden that would have been placed on the resources of ÚnaG had it been required to process 11 requests comprising 44 parts all submitted within a very short space of time. Indeed, the level and frequency of the applicant’s engagements with ÚnaG before making those requests suggest to me that he had little or no real regard to the burden his requests might cause. In my view, while I can accept that the applicant was hoping to obtain access to relevant information relating to his grievance, he could not have been ignorant of the fact that the extent and level of his engagements could also reasonably be regarded as harassment.
I would further add that ÚnaG has, in my view, provided ample evidence of the applicant’s continued excessive engagements after the requests at issue were made. While I accept the applicant’s point that such behaviour could have played no part in ÚnaG’s decision to refuse the requests under section 15(1)(g), I consider that I am entitled to have regard to that behaviour in conducting this review. It is important to note that a review by this Office is considered to be “de novo”, which means that in this case, it is based on the circumstances and the law as they pertain at the time of my decision and is not confined to the basis upon which the FOI body initially reached its decision. In my view, the nature of the applicant’s continued engagements supports a finding that the requests at issue comprise a pattern of manifestly unreasonable requests and comprise an abuse of the FOI process to the extent that the requests can be regarded as vexatious.
I note that the applicant suggested that, in accordance with the test applied by O’Malley J. in the Kelly judgment for determining whether an application is ‘frivolous or vexatious’, his FOI requests were not ‘futile, misconceived or bound to fail’. However in the Grange case, the Court of Appeal found that O’Malley J. was not attempting to give an exhaustive definition of what may be “frivolous or vexatious” nor did it consider that she was prescribing “ill-will or bad faith” as necessary before a decision maker can decide that an FOI request if vexatious. Instead, the Court of Appeal agreed with O’Malley J. that “the Information Commissioner is entitled by statute to use his or her discretion, and that there is no obligation on the respondent to prove the appellant’s state of mind, and that inferences may be drawn on a common sense basis from a pattern of conduct.”
Having regard to the background of the extensive nature of the applicant’s engagements with ÚnaG before and after he made his requests, to the number of requests made and the short space of time within which they were made, and to the broad and detailed nature of the requests, I find that the requests form a pattern of manifestly unreasonable requests and are vexatious. Accordingly, I find that ÚnaG was justified in refusing all 11 requests under section 15(1)(g) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of ÚnaG to refuse the applicant’s 11 requests 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.
Stephen Rafferty
Senior Investigator