Case number: 110102
Whether the Council was justified in refusing requests made by the applicant under section 7 of the FOI Act, on the basis that sections 10(1)(c) and 10(1)(e) of the FOI Act apply (and, in respect of case 110198, section 20(1)).
Between 12 January and 14 February 2011, the applicant made 9 FOI requests, which contained 58 different elements. The Council told the applicant that it considered sections 10(1)(c) and 10(1)(e) of the FOI Act to be potentially relevant, and invited him to amend the requests such that section 10(1)(c) would no longer apply. As the applicant did not do so, the Council's decision of 13 May 2011 refused the requests under sections 10(1)(c) and 10(1)(e) of the FOI Act, which refusal it upheld in its internal review decision of 31 May 2011. On 11 June 2011, the applicant sought a review by this Office of the above (case reference 110102 refers).
The applicant made three further FOI requests to the Council (dated 20 June, 19 July and 21 July 2011), which contained 12 separate elements and which, on 23 August 2011, the Council refused under sections 10(1)(c), 10(1)(e) and 20(1) of the FOI Act. Following the applicant's internal review application of 6 September 2011, the Council upheld its decision on 29 September 2011. On 10 October 2011, the applicant sought a review of the above by this Office (case reference 110198 refers).
In carrying out my reviews, I have had regard to the provisions of the FOI Act; to correspondence between the Council and the applicant including those as detailed above; to details of various contacts between this Office and the Council; and to details of various contacts between this Office and the applicant, particularly the preliminary views letter sent to him by Ms Anne Lyons, Investigator, dated 26 September 2012. The timeframe in which Ms Lyons invited a response to her views has now elapsed without reply from the applicant. I have therefore decided to conclude the reviews by way of a formally binding composite decision (given that they concern the same issue).
As explained to the applicant by Ms Lyons in her letter of 26 September 2012, the scope of this review is confined to assessing whether or not the Council's refusal of the requests is in accordance with the provisions of the FOI Act.
In the circumstances of these cases, I consider that section 10(1)(e) of the FOI Act is the most appropriate exemption to consider in the first instance.
A request may be refused under section 10(1)(e) if, in the opinion of the head, the request is frivolous or vexatious, or forms part of a pattern of manifestly unreasonable requests from the same requester. The head is not required to offer to assist, or to assist, the requester to amend the request that it no longer falls within the parameters of section 10(1)(e). It is also relevant to note that section 8(4) of the FOI Act, as amended, allows a public body to take into account the motive of a requester when considering if section 10(1)(e) applies.
Ms Lyons' letter of 26 September 2012 referred the applicant to decisions on the Office website that set out the Information Commissioner's interpretation of the phrase "frivolous or vexatious". She told him that, generally speaking, a request is considered by the Commissioner 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). Ms Lyons told him that the Commissioner has set out a number of non-exhaustive factors that she considers relevant in assessing whether a request may be categorised as "frivolous or vexatious", which seemed to Ms Lyons to be equally relevant in determining whether or not there is evidence of a pattern of manifestly unreasonable requests. The factors she listed were:
Ms Lyons told the applicant that she considered the number of requests to be excessive, having regard to the extent of information sought in each, and the short time period over which they were made. She also told him she considered the requests to be excessively broad and unusually detailed, such that they would be seen as excessively burdensome by any reasonable person. Ms Lyons illustrated her view by reference to the details sought in four of the requests, which she noted encompassed records of annual Dublin Civil Defence plans and funding over a ten year period; numerous Civil Defence and all Dublin Fire Brigade personnel; the ages and dates of issue of certain elements of Personal Protection Equipment issued to personnel involved in a particular incident, and how often these were repaired or laundered and visually inspected; and daily checks of the ladder set on a specific vehicle.
She told the applicant that she also agreed with the Council's view that the requests had been made with the intention of accomplishing an objective unrelated to the access process i.e. with the aim of forcing the Council to liaise with, and/or ultimately recognise, IFESA. She noted comments in the applicant's letter to the Council of 11 March 2011 that she considered to support her view, particularly the comment that if the Council "wishes to conduct normal industrial relations then we would have no need to use the FOI Act."
Ms Lyons told the applicant that, in light of the above, she felt the requests the subject of cases 110102 and 110198 to comprise a pattern of manifestly unreasonable requests. She also said she felt the use of FOI in such a manner to be an abuse of the right of access, in which case the requests would appear to be vexatious. In either scenario, she said that considered section 10(1)(e) of the FOI Act to apply.
I note that the applicant has not taken issue with Ms Lyons' views as to the application of section 10(1)(e), as set out above. I concur with those views and find accordingly. Under the circumstances, I need not consider the Council's reliance on sections 10(1)(c) or 20(1) of the FOI Act.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Council's refusal of the requests under section 10(1)(e) of the FOI Act.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
8 November 2012