Cinneadh
Mrs. X and The Office of Public Works
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-151545-D1C9H7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-151545-D1C9H7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
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
15 April 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.
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 12 January 2024, seeking access to records relating to correspondence and supporting documents from the OPW’s senior management “assigning Lime Avenue, Castletown House as pedestrian, with limited exception, when the M4 entrance opened”. On 14 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 8 March 2024, the applicant made an internal review request to the OPW. The OPW affirmed its original decision on 2 April 2024, and on 26 August 2024, the applicant applied to this Office for a review of the OPW’s decision.
During the course of this review, the applicant’s comments in her application for review were put to the OPW. The OPW’s submissions to this Office were also outlined to the applicant for comment. She provided comprehensive submissions in response.
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.
Firstly, I should state that I note that in her correspondence with this Office, the applicant has referred to the words vexatious and frivolous being applied to her personally. It is important to note that section 15(1)(g) relates to a request being frivolous or vexatious, not the requester.
Secondly, during the course of this review, the applicant indicated that she had various concerns about governance and staffing matters relating to the OPW. In this regard, it is important to note, as a preliminary matter, that 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 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”.
During the course of the review, the OPW was asked to address the applicants’ comments in her application for review to this Office. Any new and material matters in the OPW’s submissions were in turn outlined to the applicant and she was given an opportunity to comment. Both the applicant and the OPW disputed each other’s arguments in their submissions to this Office. I shall set out the relevant arguments made by the parties below. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
The OPW stated that it had received 45 FOI requests relating to matters arising at Castletown House from January to mid-February 2024, and that of these 17 had been submitted by the applicant. It provided a list of the applicant’s requests and the dates they were received, showing that she often made multiple requests in a single day. Its position was that the number of requests submitted in such a short timeline by the applicant met the threshold for vexatious. The OPW acknowledged that the applicant had withdrawn one FOI request and said that another was redirected to its HR section, but said that a further 15 of the applicant’s requests remained to be dealt with.
The applicant argued that the high number of FOI requests about this topic simply demonstrated “the level of concern within the community”, which was reflected in the number of signatories to public petitions on these matters, which had been signed by “23k individuals”. She argued that there was “a lack of transparency and accountability” surrounding the issues at Castletown House, which had led to a high number of FOI requests from “an upset community”. The applicant stated that she submitted multiple FOI requests on the same day as she was under the impression that separate, concise requests were more likely to be accepted, as opposed to longer, multi-part requests. She indicated that the OPW had not informed her that this approach was an issue. The applicant also argued that the scope of each request was “specific and linked to key issues”, relating to for instance, the proposed new car park, or access to Castletown House. Essentially, the applicant stated that had she been asked to amend or amalgamate her request in this case, she “absolutely would have”, both to assist the OPW, and to ensure that she could “obtain some limited information rather than getting a blanket refusal”.
The OPW indicated that it considered the applicant’s level of regular contact with its staff to be vexatious. It said that she was in “near-daily” contact with the OPW, including making a subject access request, FOI requests and “multiple official complaints”. The OPW also said that the site manager and senior members of staff had a lot of contact with the applicant by email, telephone and in person to try and address her concerns.
The applicant’s position essentially is that the OPW’s lack of response to her complaints, requests and queries have resulted in her having to place more FOI requests to get the information she is seeking. She noted that the OPW referred to extensive engagement with her, including meetings and telephone calls, but argued that this was not meaningful engagement, as there was no written record of what was discussed.
The OPW stated that the general manager of Castletown House telephoned and met with the applicant to discuss matters informally over coffee. It said that the manager explained to the applicant that her requests were going to be deemed vexatious, the meaning of vexatious under the FOI Act and the reasoning behind this decision, but that this didn’t result in a reduction in correspondence from the applicant.
The applicant stated that, on foot of a telephone call from the OPW, she agreed to receive information outside of the FOI process but that she was not advised that her requests were “excessive or causing difficulty”. She argued that she had received no warning or opportunity to amend her requests before they were deemed as “vexatious or acting in concert”. She stated that since she had received the OPW’s internal review decision, she had not submitted any FOI requests, as she took this matter seriously and was “stunned by OPW’s decision”. The applicant acknowledged that the general manager met with her, but stated that this was “after [her request] was already deemed vexatious”. Her position is that the manager did not provide an opportunity to amend her requests so that they would not be refused.
The OPW referred to a particular group (Group X) which I understand is one of a number of concerned community groups set up after the matter of access to Castletown House became an issue. It stated that the applicant was interviewed by RTÉ News on behalf of Group X and that she represented the group at Working Group meetings with the OPW. It stated that of the 45 FOI requests received from January to mid-February 2024, 41 were made by individuals who had “publically identified themselves as being involved with” Group X. It argued that the applicant was acting in concert with the group concerned and that this was an abuse of the right of access in the FOI Act. The OPW cited a previous decision of this Office in OIC Case No. OIC-107804-N6C5H3 Mr Y and a Government Department, available on our website at www.oic.ie , in support of its position. In that case, the Senior Investigator stated that an FOI body was entitled to refuse the request if it considered that the requester appeared to be acting in concert with another requester. He stated that it seemed to him that the phrase “in the opinion of the head, appear” was an “express acknowledgement of the fact that an FOI body may reasonably refuse a request on this basis even if the evidence is circumstantial or incomplete”. The OPW said that based on the volume of requests received in a short timeframe from the applicant and other members of the same group, it appeared as though there was a “conscious decision to inflate the volume of FOIs to nuisance levels”.
The applicant denied claims that she was acting in concert with other requesters. She stated that her FOI requests were made by her, as an individual. She argued that her engagement with the community and participation in media interviews does not mean that she “coordinated FOI requests with others”. She stated that it was her “legal right to seek information as an individual under the FOI Act”, and that OPW’s assertion that she was acting in concert was “baseless and made on assumptions”.
The OPW was of the view that many records were available to the applicant as a result of her membership of Group X, which it described as “generally well organised” with “good internal lines of communication”. It indicated that it would expect unified requests for information from the group, rather than individual requests such as those made by the applicant in this case. The OPW was of the view that this implied that there was a “purposeful decision made to take a different route”.
The applicant stated that she had intervened to stop work on a carpark that had been sanctioned by the OPW “without appropriate planning permission or certificate of exemption”. She said that she was acting out of concern and that when she had begun asking questions and making FOI requests, “more and more red flags [had] appeared”. The applicant stated that she was seeking “facts and evidence” to support her formal complaints to the OPW, Kildare County Council, and the Ombudsman about these matters. She also stated that she had tried to access information through a TD raising Parliamentary Questions (PQs), but that this had been unsuccessful. The applicant said that she had used the OPW’s formal complaint process, but that many of her emails went unanswered. The applicant also indicated that relevant documents had not been provided to the working group by the OPW. Her position was that seeking records under the FOI Act was a “reliable source of factual information from a state body [she did] not trust”.
The applicant argued that although the OPW refused her request under section 15(1)(g), she had learned through records released on foot of a Subject Access Request that the “actual reason for the refusals was because the OPW couldn't deal with the volume of requests, such is the level of concern in the community”.
In response to the applicant’s comments, the OPW stated that not all FOI requests, or requests for information through other channels, were refused. It said that during the period in question, it responded to other FOI requests relating to Castletown House, including those made by another community group. Its position was that it refused requests under section 15(1)(g) in relation to individuals with “such high volumes of requests that a vexatious level was reached”.
Essentially, the OPW stated that it had received a high number of FOI requests relating to Castletown House from September 2023 to 31 December 2023 and that it had endeavoured to ensure that as much information as possible had been released. It also stated that in the interests of transparency it published “all the material” relating to Castletown House on the gov.ie website, which included “over 1000 pages of information” (see https://www.gov.ie/en/publication/5096a-castletown-house/ for reference). The OPW said that it would continue to update this website with relevant information. It also stated that it published all of the records released under FOI in 2023 on the gov.ie website, which included records relating to at least 10 FOI requests made by Group X.
In support of her argument that she was acting in good faith, the applicant stated that she had informed the OPW on 8 December 2023, that she was happy to receive information outside the FOI process, in order to reduce the burden on the FOI Unit. The applicant further said that her FOI requests were “as concise as possible to aid in searches” and that she had checked the publicly released information and was unable to find the information she sought. She stated that in one case the OPW did not inform her that the records sought were publically available and that she withdrew that request when she discovered this for herself. On the other hand, she referred to another case where the OPW informed her that a record was available publicly when, in fact, the link provided related to a different document. I understand that the record sought was provided by the OPW at a later date once this was clarified.
Overall, the applicant’s position is that her engagement with the OPW has been respectful, and that her requests were made in pursuit of transparency and accountability, not in concert, or on a vexatious basis. She stated that the OPW’s refusal to process her requests was unjustified. She argued that the process of seeking access to information relating to these matters has been time-consuming, despite the OPW having the ability to “easily share” documents which serve the public interest.
On the other hand, the OPW’s position is that the applicant is acting in concert with Group X to make a high number of FOI requests which are vexatious and/or are part of a pattern of manifestly unreasonable requests made in order to cause disruption to its operations.
As set out above, the parties agree about very little in this case. In fact, they have made arguments directly contradicting each other. In cases such as this, where conflicting arguments have been presented in relation to the interactions between the parties, this Office is simply not in a position to accept one version of events over another in the absence of supporting evidence to support that version. Rather, our role is to decide whether the OPW has satisfactorily shown that the applicant’s request was frivolous or vexatious, or that it 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.
I have carefully considered both parties’ positions, as set out above. In respect of the meeting with the general manager, the applicant has provided copies of the relevant email correspondence setting a date and time to meet. It is clear that the meeting took place on 8 April 2024, which was after the OPW’s original and internal review decisions had issued in this case. Accordingly, while the parties disagree as to the matters discussed, I am satisfied that this meeting has no relevance to the OPW’s decision in this particular case.
I note the OPW’s arguments in relation to the applicant acting in concert, and the applicants’ comments in return. I also note the Senior Investigator’s comments in OIC Case No. 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”. 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 different 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 am cognisant of the fact 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 FOI Act is silent on the type 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 cited by the OPW, 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.
On the other hand, the OPW has stated that the applicant is a member of Group X, which she has not disputed. It also argued that, based on the volume of requests received in a short timeframe from the applicant and other members of the same group, it appeared as though there was a “conscious decision to inflate the volume of FOIs to nuisance levels”. 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. 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 members of Group X. I find accordingly.
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. The applicant has maintained that this is as a result of her queries not being adequately addressed and due to her concerns about the matters arising at Castletown House. I note that in one instance, the applicant withdrew a request as the information was publically available. 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. In considering this, I am of the view that the context in which the requests were made can and should be taken into account.
I understand that in the period from January to February 2024, when the applicant’s 17 FOI requests were made, the matter of public access to Castletown House and the surrounding parklands continued to lead to public meetings and protests being held, with various community and campaign groups getting involved, media reports being published and PQs being raised. There was clearly ongoing significant interest from members of the public in matters relating to Castletown House and the OPW's engagements and actions in respect of the site. Having regard to the principles set out in section 11(3) of the FOI Act, it seems to me that while the number of requests received from the applicant could be regarded as high, given the legitimate interest by the public in the subject matter, it seems to me they 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.
The Commissioner takes the view that the FOI Act demands that FOI bodies meet very high standards in dealing with requests; however, he also takes the view that the legislation assumes reasonable behaviour on the part of requesters. The applicant in this case has acknowledged that she made multiple requests on the same day on a number of occasions and has indicated that she now realises that this caused more work for the OPW, in terms of issuing multiple decisions, etc. She has nonetheless maintained her position that she made her various FOI requests due to concerns about the ongoing issues concerning access to Castletown House.
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.
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 multiple requests on the same day in a number of instances, 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 decisions 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.
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Sandra Murdiff
Investigator