Cinneadh
Ms Y and Health Service Executive
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-132825-C5W5X1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-132825-C5W5X1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the HSE was justified in refusing access to records relating to a named nursing home under section 15(1)(g) of the FOI Act on the ground that the request forms part of a pattern of manifestly unreasonable requests from the applicant
13 November 2024
On 1 September 2022, the applicant submitted the following request to the National Screening Service of the HSE for the following records about a named nursing home:
1. All documentation/notes/notes and minutes of meetings/records of communication (emails/telephone calls/ WhatsApps/Virtual meetings etc.), reports about a named nursing home from 4/4/2020 until 24/4/2020. To include all communications/ documents/reports/meeting involving employees of a specified HSE area and any HSE employees.
2. All communications/any notes/records of meetings held/attended/records of phone calls/ reports sent to addressed to/initiated by/involving a named individual about the named nursing home from 4/4/2020 to 24/4/2020
3. All communications/any notes/records of meetings held/attended/records of phone calls/ reports sent to addressed to/initiated by/involving a second named individual about the named nursing home from 4/4/2020 to 24/4/2020
4. All communications from the National Screening Service to a third named individual about the named nursing home from 6/4/2020 to 24/4/2020.
5. All communications between a specified Public Health area of the HSE and the National Screening Service about the named nursing home from 6/4/2020 to 24/4/2020.
On 15 September 2022, the HSE refused the applicant’s request under section 15(1)(a) of the FOI Act. The HSE said it discussed the applicant’s request with the National Screening Service (NSS) staff members mentioned in her request, and the records sought do not exist within the NSS. On 14 October 2022, the applicant requested an internal review of the HSE’s decision. She said it is incomprehensible that these records do not exist within the NSS given the extent of the involvement of the NSS with the named nursing home and of those mentioned in her request. On 8 November 2022, the HSE varied its original decision and part-granted access to a record of a meeting. It refused parts of the record under sections 29, 30 and 36 of the FOI Act. On 1 December 2022, the applicant applied to this Office for review of the HSE’s decision on the ground that further records relating to her request ought to exist.
During the course of this review the HSE claimed that the applicant’s request forms part of a pattern of manifestly unreasonable requests, and that section 15(1)(g) of the FOI Act applies. Details of the HSE’s reasons for refusing the request under section 15(1)(g) were provided to the applicant by this Office’s Investigating Officer. The applicant was invited to make submissions in the matter which she duly did.
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.
As noted above, the applicant applied to this Office on the ground that she believed further records ought to exist. During the course of this review the HSE stated that it wished to rely on section 15(1)(g) of the Act to refuse the applicant’s request.
Accordingly, this review is concerned with whether the HSE was justified in refusing the applicant’s request under section 15(1)(g) of the FOI Act on the basis that the request forms part of a pattern of manifestly unreasonable requests from the same requester.
Firstly, I wish to apologise to the applicant for the delay in completing our review of this case.
Secondly, it is important to note that a review conducted by this Office is considered to be “de novo” which means here that the review 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 reached its decision.
In its initial submissions to this Office, the HSE said that as the records requested were not part of National Screening Service business, but part of work done by some staff members on secondment to other areas of the HSE during COVID-19, it conducted an initial search verbally to see if the records were held by the NSS. During the verbal search the NSS Director of Public Health confirmed that the team’s work at the nursing home was while redeployed to another HSE division. It said the NSS Director confirmed that redeployed staff had used computer equipment, files, email accounts and folders provided by the HSE division that were separate to those used when the team returned to the NSS. The request was therefore refused under section 15(1)(a) as the records requested would not exist in the NSS system. The HSE said that upon receipt of the applicant’s internal review request, the team conducted a fresh search of NSS electronic files, emails, folders and filing cabinets and identified one suitable record; minutes of an Outbreak Control Team meeting about the named nursing home. This record was released to the applicant with redactions.
As noted above, during the course of this review the HSE claimed that the applicant’s request forms part of a pattern of manifestly unreasonable requests, and that section 15(1)(g) of the FOI Act applies.
Section 15(1)(g)
Section 15(1)(g) provides that an FOI body may refuse to grant a request where it considers that the request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests. 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 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 in Grange 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 in Kelly 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 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 grievances, as well the context of the FOI request in question”.
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).
The HSE’s Submissions
In its submissions to this Office, the HSE noted that the applicant’s request refers to both the National Screening Service and a specified area of the HSE. The HSE stated that the specified area of the HSE referenced by the applicant in her request had received 37 FOI requests from the applicant in 2021, 2022 and 2023 with regard to the nursing home at issue, which the HSE said were processed. The HSE stated that a number of the requests were broad and repetitive and revisited issues which, in part, had been previously addressed with regard to the specific cohort of records. The HSE stated that a pattern of overlap in a number of requests was also noticed and timeframes were slightly extended in some cases but all involved records which had been considered previously.
The HSE stated that in relation to the present request under review with this Office, it had identified records where the first and second named individuals were referenced in the records. It stated that 6 of the 37 requests made by the applicant were subject to review by this Office in relation to various managers of Older Persons Services. The HSE said that the records which contained references to the first and second named individuals were included in a number of cases which have been subject to review by this Office. The HSE stated that a number of the records had already been released and some were released with redactions.
The HSE stated that the first named individual referenced in the applicant’s request worked in the National Public Health Service of the HSE with a remit for the National Screening Service. The HSE stated that the first named individual was seconded from the NSS during COVID for a very short period of time to attend meetings and provide advice on public health matters in relation to the named nursing home and others. The HSE stated that this was due to non-availability of other public health staff for those meetings and that this attendance was not related to the first named individual’s function within the National Screening Service. The HSE said that the second named individual in the applicant’s request was a note taker on occasions for the first named individual and attended some of the meetings and also works in the Public Health Service.
The HSE said that it did not have communications between the National Screening Service and the specified area of the HSE referred to in the applicant’s request regarding the nursing home, nor the National Screening Service and the third named individual. The HSE said that all relevant records were considered when processing previous requests from the applicant.
In its submissions, the HSE stated that the applicant as of January 2023 had made a total of 86 FOI request on the same topic and 11 internal review requests. The HSE stated that it was decided during 2022 to apply 15(1)(g) of the FOI Act as the HSE’s position was that the requests formed part of a pattern of manifestly unreasonable requests from the same requester or from different requesters who in the opinion of the head appeared to have made the request acting in concert. The HSE said that it has had a number of other requests from members of the public which provided it with an indication that they were acting in concert with the applicant.
The HSE said it refused 11 separate FOI requests it had received from the applicant on 13 January 2022 under section 15(1)(g) of the FOI Act. It provided this Office with a copy of its letter to the applicant dated 17 February 2022, wherein it set out the basis for its refusal of the 11 requests. In this letter, the HSE said “a pattern of overlap of requests has also been observed while timeframes may be extended in some cases very slightly in relation to particular sets of records but were encompassed by previous requests”. I note that the HSE’s decision on these 11 requests were not the subject of review by the Office.
The HSE stated that when the National Screening Service received the applicant’s request it did consult with the specified area of the HSE in relation to the only record which the National Screening Service had identified. The HSE stated that it was identified that this record had already been considered by the HSE and was released with appropriate redactions. It said that, it is the position of the HSE that section 15(1)(g) of the Act continues to apply in relation to this type of request made by the applicant due to multiple requests of similar time frame and the same named nursing home together, with multiple considerations of the same records which have already been released and/or part granted. The HSE stated that a number of other requests were received from members of the public regarding the named nursing home. The HSE stated that it was aware that the applicant formed part of the group to which some of these requesters belong and that they had requested and attended a meeting with the then Director General of the HSE in relation to the named nursing home together with the applicant.
The Applicant’s submissions
As outlined above, the Investigating Officer provided the applicant with a summary of the submissions made by the HSE. In her submissions to this Office, the applicant said she refutes the allegations made by the HSE and the inferences they make. The applicant acknowledged that she has raised a lot of FOI requests. She said these requests were necessary in order to uncover the facts about what unfolded at the nursing home in question, and the experience of residents in April and May 2020. The applicant said she believes that the context of these FOI requests is an important factor in the responses she has received. The applicant said she suspects that reputational damage is a concern of the HSE in addressing her request and that what unfolded at the nursing home was extraordinary. The applicant said that she began to use the FOI process to establish what unfolded at the nursing home in April and May 2020 and referred to concerns she had about how COVID was managed at the home.
The applicant stated that she understood why the HSE are invoking section 15(1)(g) of the FOI Act as on the face of it her requests could appear frivolous or vexatious if the full facts were not known. The applicant said one of the reasons for the volume of requests is because it is difficult to establish structures, the roles of individuals, and that during the period in question there were multiple temporary arrangements and secondments in place. She stated that in the absence of valid information following “all trails” is a valid action.
The applicant said that it is not always apparent who does what or the scope of various roles, and that it was apparent to her that during the relevant time period of her request, public sector staff assumed new roles, were seconded or had new responsibilities. The applicant stated that she disagrees that the requests or the subject matter of the requests are frivolous or vexatious in nature. The applicant said that when she submitted requests she was trying to determine structures. The applicant said that she did not recall pandemic decision making structures at all levels being available, or the relevant minutes of meetings, and that the volume of requests to the various entities was necessary to address gaps and seek other ways of getting an account. The applicant stated that the standard response to FOI requests has varied and questioned the robustness of the HSE’s record management system on the whole and the HSE’s search and retrieval efforts. The applicant said that she has been advised records were not in existence or could not be found and then some were found when she requested an internal review on a couple of occasions. She said, that despite her many FOI requests she still has no documentation which explains why a particular decision was taken in regard to the nursing home. The applicant contends the HSE are being selective in its response by using section (15(1)(g) to exempt records.
In relation to the HSE’s suggestion that the applicant is working in concert with other individuals, the applicant stated that while others may have submitted FOI requests regarding the named nursing home, this is absolutely separate from her FOI requests. The applicant said that the suggestion that she or anyone she knows orchestrated a campaign by sending duplicate requests is ridiculous. The applicant acknowledged there may have been overlap in some of her requests but said she may have lost track given the long delays in responding or addressing her requests. She said under no circumstances did she intentionally duplicate work.
Finally, regarding the repetitive nature of the requests, the applicant stated that there would be no need to submit further requests if full searches and retrieval exercises and valid responses had been provided. She stated that there is a natural overlap between requests as there is an overlap between the HSE and all other entities involved. She stated that due to the lack of proper assistance from the HSE, she was left with no option but to submit multiple requests especially in regard to those records which appeared contradictory. The applicant noted some of the information which only became available because of the FOI process, that she said was absent from the initial explanations of what unfolded at the nursing home.
My Analysis
The FOI Act affords important access rights to records held by FOI bodies. Indeed, in performing any functions under the Act, FOI bodies must have regard to:
• the need to achieve greater openness in their activities and to promote adherence by them, to the principle of transparency in government and public affairs.
• the need to strengthen the accountability and improve the quality of decision making of FOI bodies, and
• the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies.
The refusal of a request under section 15(1)(g) is not something that should be undertaken lightly. As its Long Title 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 regard to the applicant’s submissions, it seems to me that she is, in essence, arguing that her use of the FOI process and her engagements with the HSE are as a result of her desire to establish what unfolded at the nursing home in April and May 2020 and to understand why certain decisions were made by the HSE in that regard. While I appreciate the reasons for the applicant’s persistence and her desire to understand the events that unfolded at the nursing home during this unprecedented time, this does not in my view justify the relentless use of FOI to follow “all trails” to address information gaps identified by the applicant without due regard to the resources required in processing each request.
One of the criteria to be taken into account when considering whether a request is manifestly unreasonable is whether the requests are repetitive in character or are they used to revisit an issue that has previously been addressed. I note in the HSE’s submissions to this Office, it stated that the applicant had made 86 requests by 1 January 2023 and 37 FOI requests to the specified HSE area referred to in this review regard the named nursing home. It seems to me that a reasonable examination of the matter, the applicant’s engagements with the HSE over a 3-year period have been excessive. It also seems to me that the applicant’s use of FOI has formed an integral part of her strategy in engaging with the HSE in respect of her pursuit of full disclosure and accountability in the matter. While I sympathise with the applicant’s reasons for pursuing her investigation and I recognise that it is not unreasonable that a requester may avail of FOI to establish certain facts and information regarding specific events and decisions, it is important for requesters to acknowledge that there are practical limits on the extent of the resources that an FOI body must expend in dealing with such requests.
The applicant has highlighted the serious nature of the events that occurred in the named nursing home and stated that it is her view that staff of the named nursing home, owners and management of the business, individuals concerned with human rights and care of individuals, and journalists would be interested in the records. This Office considers that the fact that there may be a public interest in the release of information sought in a request does not mean that the request cannot be refused under section 15(1)(g) of the Act. This section of the Act provides an administrative ground for refusing a request in particular circumstances regardless of any public interest that might be served by granting the request.
Having carefully considered the submissions from both parties in this case, in my view it seems evident that the applicant engaged in a pattern of submitting multiple requests for information about the HSE’s role in events that occurred at the nursing home in April/May 2020. It also appears that the HSE processed many requests from the applicant and provided her with records relating to matter, which in turn appears to have motivated further requests. Having regard to the submissions in this case and number of requests submitted by the applicant relating to the same subject matter, I am satisfied that the HSE was justified in refusing the applicant’s request on the ground that it forms part of a pattern of unreasonable requests from the same applicant.
For the sake of completeness, I should say that this decision does not, of itself, mean that all future requests submitted by the applicant may be refused under section 15(1)(g). The applicant clearly has strong concerns about the events that occurred in the specific nursing home and it may well be the case that she will want to avail of the FOI process to obtain relevant information about such matters. However, in doing so, I would urge the applicant to use the regime in a reasonable fashion. I would also add the Act requires FOI bodies to give reasonable assistance to a person seeking access to a record. Should the applicant choose to make a request to the HSE for further records relating to the nursing home in the future, I recommend she engages with the HSE at the outset to seek assistance.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision to refuse the applicant’s request for records 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.
Richard Crowley
Investigator