Cinneadh
Mr A and Enterprise Ireland
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-149127-L4G6G7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-149127-L4G6G7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Enterprise Ireland was justified in refusing, under section 15(1)(g) of the FOI Act, the applicant’s request for records concerning State-aid granted on the basis that it considered his request to form part of a pattern of manifestly unreasonable requests from different requesters who appear to have made the requests acting in concert
5 March 2025
In a request dated 15 March 2024, the applicant sought access to the following records:
1. “All Gender/Diversity and inclusion Policies supplied by all Agri-food Recipients of the 34 million in state aid given by Enterprise Ireland to these Agri-Food Companies in 2020-2023 [as listed on Enterprise Ireland’s website in a link provided]
2. All application forms these Agri-Food business had to fill out in the process of acquiring this Generous State-Aid
3. Any documents outlining what “Diversification” meant on the contents of the “Short Descriptions” outlined on [Enterprise Ireland’s] website and if this “Diversification” had any meaning to Gender Diversity or other Types of Diversification on the Co-Ops Board of Directors or Senior leadership positions.”
On 17 April 2024, Enterprise Ireland refused the request under section 15(1)(g) of the FOI Act on the ground that the request submitted, and numerous communications with the agency spanning over the previous 18 months in concert with another individual, formed part of a pattern of conduct that it considered to amount to an abuse of process or an abuse of the right of access. On 19 April 2024, the applicant sought an internal review of that decision. Among other things, he said he regarded bringing up any external maters to the FOI process as a violation of the rights of Irish citizens to access information under the FOI Act. He said he had a genuine interest in the information. He added that any dealings he had with Enterprise Ireland in the past are behind him. On 14 May 2024, Enterprise Ireland affirmed its refusal of the request under section 15(1)(g).
On 20 May 2024 the applicant applied to this Office for a review of Enterprise Ireland’s decision. Among other things, he said he was acting of his own accord. He suggested that he was a victim of discrimination by Enterprise Ireland and that there was a campaign of intimidation against him.
During the course of the review, the Investigating Officer provided the applicant with details of Enterprise Ireland’s submissions wherein it outlined its reasons for relying on section 15(1)(g) of the FOI Act to refuse the request. The Investigating Officer invited the applicant to make submissions on the matter, which he 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 Enterprise Ireland and the applicant 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 Enterprise Ireland was justified in its decision to refuse the applicant’s request under section 15(1)(g) of the FOI Act.
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:
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).
It is important to note that the list above 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 also 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 inKelly v the Information Commissioner [2014] IEHC 479, 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 aforementionedKelly v the Information Commissioner , 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”.
Enterprise Ireland’s submissions
For background context, Enterprise Ireland explained in its submissions that the applicant, in partnership with two others (Mr X and Mr Y), are the promoters of a named company (the Company). It said that in 2022, the Company applied for funding from Enterprise Ireland under two identified competitive funding streams but was not successful in either bid. It said that in December 2022, it received notice of a complaint under the Equal Status Acts from the company claiming gender and geographical discrimination in the evaluation process for one of the competitive funding schemes and victimisation by Enterprise Ireland. It said the Secretary to the Enterprise Ireland Board reviewed the allegations of discrimination in detail and did not uphold the complaint. It said the Company rejected the findings and submitted a complaint to the Workplace Relations Commission under the Equal Status Acts 2000-2018.
Enterprise Ireland said the Company has made a variety of serious, unfounded and defamatory allegations against Enterprise Ireland, individual members of its staff and/or named contractors. It said that in April 2023, the CEO of Enterprise Ireland issued a letter to the Company to address the volume, content, and hostility of the communications that Enterprise Ireland, its staff members, and its contractors had received from the Company over a period of some months following its applications to the two identified competitive funding streams. It said that in September 2023, its legal representatives wrote to the Company. The letter in question, which was addressed to the applicant, Mr X and Mr Y, referenced the letter previously issued by the CEO and described the alleged conduct of the company, the applicant and Mr X since that letter had issued. It also included details of the channels of communication that should be followed for any future engagements with Enterprise Ireland.
Enterprise Ireland said that despite this letter, the Company continued to email Enterprise Ireland on matters relating to the case. It also referenced three separate decisions of the WRC, including one in which the complainant is identified in the decision as the applicant. I note that the complaint failed in all three cases.
In terms of the basis on which it decided to refuse the request under section 15(1)(g), Enterprise Ireland said that while the applicant has submitted just one request to it to date, it considered it clear from the communications that he and Mr X are acting in concert to vex, frustrate and place a burden on the operations of Enterprise Ireland. It said that not only have the applicant and Mr X been party to the formal requests submitted to Enterprise Ireland to date, they have also sent and copied each other and multiple external bodies on what it described as several unacceptable and inappropriate communications to Enterprise Ireland, containing accusations and character attacks on the agency, its employees, and named contractors. It said there has also been a large volume of challenging and confrontational correspondence with people across the organisation, stakeholders, as well as its legal representatives.
Enterprise Ireland added that despite the instruction details in the letter to the Company in September 2023, both the applicant and Mr X continued to email Enterprise Ireland in an inappropriate manner. It said the applicant’s FOI request was received on 15 March 2024, two days after the WRC issued its adjudication on the applicant’s complaint, thereby demonstrating a clear link between the decision of the WRC and the subsequent request to Enterprise Ireland, as well as further requests by his business partner Mr X. It said Mr X’s most recent FOI request was received on the 11 March 2024, the same day the WRC issued its adjudication on his complaint.
Enterprise Ireland stated that while the applicant had submitted one FOI request to it, Mr X submitted 8 requests, totalling 143 parts, between July 2022 and March 2024. It said the applicant was copied on four of those requests and that he also copied Mr X on his request. It also referenced email correspondence between the applicant and Mr X which was copied to Enterprise Ireland in the course of the processing of the applicant’s request. It said all requests submitted to date by both the applicant and Mr X centre around the reasons for refusal of funding and Enterprise Ireland’s general policies and actions around the awarding of supports. It referenced certain aspects of the requests that were copied between the parties. It identified one case where Mr X applied for an internal review in one case that was copied to the applicant and where the applicant subsequently responded to the internal review decision. It identified a second where the applicant was copied on the request and where the applicant was copied on the application for an internal review of the refusal of the request. It noted that Mr X was copied on the request submitted by the applicant.
Enterprise Ireland added that due to the pattern, timing and general content and language of the requests from both the applicant and Mr X, it considered it clear that many of the requests were submitted for their "nuisance" value and were intended to accomplish some objective unrelated to the access process. It said it has made best efforts to provide records to the applicant and Mr X in relation to the reasons for the decisions made by Enterprise Ireland in relation to their funding and that it provided many records to them in this regard. It said, however, that it has become clear that once the original requests were processed, the parties then set about a series of requests which Enterprise Ireland believes were intended to harass the organisation or to break or burden the system.
Applicant’s submissions
As I have outlined above, the Investigating Officer provided the applicant with details of Enterprise Ireland’s submissions during the course of the review. In response, the applicant made a number of submissions. While I have had regard to the full details of those submissions, I do not propose to repeat them in full here. One of his primary arguments is that Enterprise Ireland cannot prove its claims without breaching the provisions of the General Data Protection Regulation (GDPR) and as such, any claims that cannot be proven legally must be regarded by this Office as inapplicable. Among other things, he said any records Enterprise Ireland has about him or other individuals should only be kept for as long as is necessary for the purpose for which the information was collected. He suggested that the forwarding of any such records to this Office or reliance upon them by Enterprise Ireland for the purposes of the review may breach GDPR legislation.
The essence of the applicant’s response to Enterprise Ireland’s submission that he and Mr X were acting in concert is that the Company is a separate legal entity and that he cannot comment either on that legal entity or on any correspondence between Mr X and Enterprise Ireland. He has, in essence, sought to distance himself from any engagements Enterprise Ireland may have had with the Company and/or Mr X. He also appears to be seeking to draw a distinction between any correspondence he may have had as individual and any correspondence he may have had through his involvement with the Company.
The applicant also said his request is not frivolous or vexatious. He said proceedings may be vexatious or frivolous where there is no reasonable chance of success. He said his request is a unique and original FOI request and looks for records pertaining to the funding of millions in taxpayers’ money to multi-million-euro agri-food businesses. He said he can see no legal argument or reason for his request to have “no reasonable chance of success”. He said there cannot be a pattern of “unreasonable” FOI requests as he had made no previous FOI request to Enterprise Ireland. He said he had made only one FOI request to Enterprise Ireland in his capacity as a private individual. He said he was looking for transparency in the agri-food sector and that this is the main reason for his request, and not to attack Enterprise Ireland. He said he has been interested in the agri-food sector for quite a while and he provided details of requests he had made to other FOI bodies on such matters and other relevant material he considered to support his claim that he had an interest in agri-food matters. He said there can be no denying his motivations being entirely related to agri-food matters. He also suggested that section 15(1)(g) refers only to FOI requests and as such, no interactions or communications outside the actual FOI request itself could be considered when deciding whether to grant or refuse an FOI request under section 15(1)(g) of the Act. He said it was his understanding that the law was only to be applied in cases where individuals or others continue to make the same FOI request repeatedly, which he stated was not the case in relation to his FOI request.
My Analysis
It is important to note at the outset that this Office has no role in considering whether Enterprise Ireland has breached data protection legislation. The FOI Act is entirely independent of data protection legislation and FOI requests and related reviews must be processed in accordance with the provisions of the FOI Act. Nevertheless, I do not accept that by providing information or records to this Office for the purpose of a review, Enterprise Ireland would be in breach of data protection legislation. Article 86 of the GDPR provides that personal data in official documents held by a public body for the performance of a task carried out in the public interest may be disclosed by the body in accordance with
Union or Member State law to which the public body is subject in order to reconcile public access to official documents with the right to the protection of personal data pursuant to the Regulation. Accordingly, I am satisfied that I can properly have regard to Enterprise Ireland’s claims that may rely on correspondence with parties other than the applicant. Indeed, section 15(1)(g) expressly provides for the refusal of a request where the FOI body considers the requester to be acting in concert with other individuals. I fail to see how a public body could legitimately rely on such a provision if the applicant was correct in his interpretation of the legislation.
The essence of Enterprise Ireland’s argument is that the applicant appears to be acting in concert with Mr X and that his request forms part of a pattern of manifestly unreasonable requests made. On that issue, it seems to me that the applicant has made no substantive arguments to suggest that this was not the case and instead, he merely sought to distance himself from any engagements Enterprise Ireland may have had with the Company and/or Mr X.
The question of whether individuals appear to be acting in concert is generally not straightforward. The FOI Act is silent on the type of factors that might be regarded as relevant when considering this matter and 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.
It is important to note that the Act does not require certainty on the part of the FOI body before it can make a finding that requesters are acting in concert. The Act allows an FOI body to refuse a request under section 15(1)(g) where it is of the opinion that the requester and other individual(s) appear to have made the requests acting in concert. In my view, the language of section 15(1)(g) is 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.
Thus, the question arises as to what evidence will suffice in order for an FOI body to reasonably form the opinion that the requesters appear to be acting in concert. The Act is silent as to the standard of proof which should apply in such cases. It seems to me that the standard of proof required in such cases is that of "the balance of probabilities".
In this case, I do not accept that the applicant can reasonably seek to distance himself from Enterprise Ireland’s engagements with Company or with Mr X, given both his and Mr X’s connection to the Company and the nature of the relevant engagements with Enterprise Ireland. It is also relevant, in my view, that the applicant made no substantive arguments to suggest that they were not acting in concert. Moreover, it is apparent that the applicant and Mr X shared at least some of the correspondence they had with Enterprise Ireland in respect of the requests made by both parties. In all the circumstances, I find that Enterprise Ireland reasonably formed the opinion that the applicant and Mr X appeared to be acting in concert in the submission of FOI requests and that the applicant’s request formed part of that pattern of requests.
On the matter of whether the requests form 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).
I would note at the outset that the fact that the applicant may have a genuine interest in agri-food matters does not mean that the requests cannot be deemed to be manifestly unreasonable. All of the requests submitted by Mr X concerned either the Company’s unsuccessful application for funding and/or the relevant competitive funding streams in question. The applicant’s request was strongly connected to the subject matter that formed the basis of the relevant WRC decisions and concerned the Company’s funding applications. I note that a number of the requests are quite detailed. Having regard to the nature and timing of the requests against a backdrop of the Company’s failure to secure funding from Enterprise Ireland, I am satisfied that the making of requests has become an integral part of attempts by the applicant and Mr X to prolong their dispute with Enterprise Ireland. I note, in particular, the language used in one of the requests made by Mr X which suggests to me that the request was, at best, submitted for that purpose. As section 25(3) requires me to take all reasonable precautions to prevent the disclosure of exempt information, I find that I cannot provide further details on the wording of the specific request.
I also note the applicant’s argument that the main reason for his request was to look for transparency in the agri-food sector.In Grange v the Information Commissioner , referenced above, the Court of Appeal found that an FOI request may be refused under section 15(1)(g) even if the requestor can point to a particular public interest or is pursuing a particular agenda. It found that this Office is entitled to consider the broader issue of the manner in which the requester has engaged with the public body. Having carefully considered the matter, I find that Enterprise Ireland reasonably found the applicant’s request to form part of a pattern of manifestly unreasonable requests.
In conclusion, therefore, I find that Enterprise Ireland was justified in refusing, under section 15(1)(g) of the Act, the applicant’s request for certain records on the ground that the request forms part of a pattern of manifestly unreasonable requests from different requesters who appear to have made the requests acting in concert.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of Enterprise Ireland to refuse, under section 15(1)(g) of the Act, the applicant’s request for certain records on the ground that the request forms part of a pattern of manifestly unreasonable requests from different requesters who appear to have made the requests acting in concert.
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