Case number: 130027 and 130058
On 20 November 2012, the applicant sought access to (1) all records held by the NSCDA in relation to VAT on the lease of the National Aquatic Centre between 15 May 2003 and 20 February 2012 and (2) all advice received by the NSCDA in relation to VAT on the lease of the National Aquatic Centre and the VAT dispute with XX between 15 May 2003 and 20 February 2012.
On 14 December 2012, the applicant sought
(1) All feasibility studies held in relation to the National Aquatic Centre.
(2) All versions of the Price Waterhouse Coopers (PWC) Financial Profile and Market Study.
(3) All correspondence held by NSCDA in relation to any feasibility studies, financial profiles and market studies in relation to the National Aquatic Centre and
(4) Documents in relation to the procurement of 1, 2 and 3 above.
On 19 December 2012 and 17 January 2013 respectively, the NSCDA refused the requests, citing section 10(1)(e) of the FOI Act, on the basis that it contended that the requests form part of a pattern of manifestly unreasonable requests from the same applicant.
The applicant sought internal review of these decisions on 21 December 2012 and 22 January 2013 respectively. On 24 January 2013 and 12 February 2013, respectively, the NSCDA decided to uphold the original decisions. Applications for review of the NSCDA's decisions were received by this Office on 28 January 2013 and 7 March 2013, respectively. As both applications concern the same core issue, ie. the NSCDA's decisions that the applicant's requests form part of a pattern of manifestly unreasonable requests, I have decided to deal with them by way of a composite decision.
It may be helpful here to give some context to the records at issue by setting out some of the background in respect of the applicant's relationship with the NSCDA. In 2003, the applicant's company - XX - was granted a lease contract by Campus Stadium Ireland Development Limited (now NSCDA) in relation to the National Aquatic Centre. A dispute arose as to whether Campus Stadium Ireland was correct in charging VAT to XX in a sum in excess of €10 million on the capitalised value of the 30 year lease entered into by the parties. The High Court ordered that the issue be referred for arbitration in 2005. The Arbitrator found that the VAT sum was correctly charged. Campus Stadium Ireland sought leave to enforce this award while XX sought to have the Arbitrator's award set aside. Complex issues arose as to the valuation of the premises for VAT purposes and advice was received by Campus Stadium Ireland from various entities. Ultimately, the Supreme Court, in a judgment delivered on 30 April 2010, found that significant errors had been made in the Arbitrator's award and set aside that award. It found that a formula "plainly adverse to XX's interests" had been used.
The State's involvement in the matter was the subject of an inquiry by the Oireachtas Public Accounts Committee (PAC) which issued a report in February 2013. Amongst the issues arising at the PAC was the content of professional advice received by the NSCDA and the furnishing of certain records to the PAC by the applicant following their release to him as a result of an administrative settlement in a review by this Office of a previous FOI decision (OIC Reference Case 120080).
As I understand it, there were also Court proceedings concerning the contract terms and the return of the lease of the National Aquatic Centre from XX to Campus Stadium Ireland.
In carrying out this review, I have had regard to correspondence between the NSCDA and the applicant, the NSCDA's and the applicant's submissions to this Office and also to the provisions of the FOI Act.
The only issue in this review is whether or not the NSCDA has justified its refusal of the applicant's FOI requests under section 10(1)(e) of the Act. I note that section 34(12)(b) places the onus on the public body to justify to my satisfaction its decision to refuse the requests.
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 or from different requesters who, in the opinion of the head, appear to have made requests acting in concert..." Unlike the requirements for refusal on administrative grounds in, for example, section 10(1)(c), the head is not required to assist, or to offer to assist, the requester in amending the request so 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, is interpreted as allowing a public body to take into account the motive of a requester when considering if section 10(1)(e) applies.
In Case Number 030406, Mr. X and the Institute, the previous Commissioner adopted her predecessor's Mr Kevin Murphy's approach to interpreting the term "frivolous or vexatious" as set out in Case Number 020375, Mr. X and RTÉ. (Both decisions are available at www.oic.ie.) She considered the following non-exhaustive list of relevant factors to consider in determining whether a pattern of conduct amounts to an abuse of the right of access:
" (1) The actual number of requests filed: are they considered excessive by reasonable standards?
(2) The nature and scope of the requests: for example, 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 which has previously been addressed?
(3) The purpose of the requests: for example (a) have they been submitted for their "nuisance" value, (b) are they made without reasonable or legitimate grounds, and/or (c) are they intended to accomplish some objective unrelated to the access process?
(4) The sequencing of the requests: does the volume of requests or appeals increase following the initiation of court proceedings or by the institution or the occurrence of some other related event?
(5) The intent of the requester: is the requester's aim to harass government or to break or burden the system? "
In addition, the outcome or cumulative effect of the requests is an important consideration. It is appropriate to consider the requests under review in the context of other requests made to the public body and the requester's dealings with this Office. Other matters which might be of relevance in assessing whether a request forms part of a pattern of manifestly unreasonable requests include whether it is apparent that there has been a significant amount of overlap between a number of requests and whether at least some of the requests have related to documents that an applicant has already received outside the FOI process. In some circumstances, a request or requests for an unreasonably large number of records which is made in abuse of the Act may take a request out of the realms of section 10(1)(c) and into those of section 10(1)(e).
The NSCDA contends that the requests are excessive due to their time span, which covers almost 10 years. It points out that it received a number of other requests for records from the requester relating to the National Aquatic Centre and, in particular, the VAT charge on the lease. It says that while each FOI request is considered on its own merits and decided upon individually, the decision maker formed a view that the requests the subject of this review forms part of a pattern of unreasonable requests.
It says that, since 2010, the vast majority of FOI requests which it received are either from the applicant or have been submitted by journalists or elected representatives on behalf of the applicant. It also says that, while the level of FOI requests received is relatively small, nonetheless the pattern of requests received from the requester is significant and places a significant burden on the limited resources of the NSCDA, whose staff consists of 4.6 whole time equivalents. In addition, the NSCDA contends that, when the requests are considered in the context of the long history of disputes, claims and proceedings between the applicant and the NSCDA, they fall within the scope of section 10(1)(e) and, as such, do not require it to go to the administrative effort of searching for and examining the requested records.
I understand that a total of twelve requests were received by the NSCDA since 2010. Of these, seven were received from the applicant: three in 2012 (two of which are the subject of this review), three in 2011 and one in 2010. The other five FOI requests which the NSCDA received were not related to the applicant. I note that several of the applicant's earlier requests were also the subject of review by this Office and I return to this below in examining the nature, scope and sequencing of the requests. In relation to the number of requests, while I accept that the NSCDA is a relatively small public body, it is fair to say that the development of the National Aquatic Centre and the controversies surrounding the VAT issue are issues of such a scale that it is not altogether surprising that substantial FOI requests were generated around them. I should point out also that one of the 2012 requests referred to in the NSCDA submissions was the subject of a review application to this Office (OIC Reference Number 120141) and was closed as withdrawn in September 2013 when the applicant accepted this Office's view that the particular records he had sought were not held by the NSCDA. In fact, this occurred following clarification of the matter by this Office's Investigator since the NSCDA does not appear to have initially considered a refusal of access on the grounds that the records were not held; instead its decision relied on section 10(1)(e).
As regards the 2011 requests, I accept that in two cases referred to by the NSCDA, (NSCDA Reference Numbers 2011/003 and 2011/ 004) it is possible that there is some degree of overlap between some of the records sought concerning the VAT issue and some of the records potentially within the scope of this review. However, the dates specified in the 2011 request do not cover the same period as the current cases. Furthermore, the NSCDA has not provided any information on the outcome of those 2011 requests i.e. what its decision was and whether any records were released to the applicant on foot of those particular requests. The situation in regard to the one request from 2010 is similar. The third request from 2011(2011/005) gave rise to a review (OIC Reference Number 120080) which was settled following the intervention of staff of my Office after which the NSCDA agreed to "administrative release" of a number of records covering periods in 2002 and 2003. I note that the records at issue were released to the applicant in or around 9 November 2012; the applicant argues that the records he sought afterwards (now the subject of this review) "are a continuation of those". He further says that some of the PWC records released after FOI requests were the subject of comment by the Chairman of the PAC in February 2013.
In response to a query from my Office as to whether any of the records now being sought might have been made available already to the applicant through the Discovery process in the course of litigation, the applicant states that, to the best of his knowledge, he is not in receipt of any such records.
It is clear that the summary above points to a relatively large number of requests spanning a long running dispute and that, in some circumstances, the cumulative effect of this might be found to justify a contention that there is a pattern of requests that can reasonably be described as frivolous or vexatious. There is, without doubt, a pattern of requests - the question is whether this is manifestly unreasonable. It is not possible to assess the reasonableness or otherwise of the pattern of behaviour without taking the requests in the context of the background to the applicant's engagement with the NSCDA. It could indeed be argued that the sequence of requests suggests that the applicant is re-visiting the dispute about the VAT and related matters. However, it seems to me that the applicant's position is that the records sought might still be of importance to an ongoing dispute. In considering the purpose of the requests and whether they have been submitted for their "nuisance" value, I have had regard to whether they intended to accomplish some objective unrelated to the access process. In this regard, I cannot ignore the fact that access to the records is seen by the applicant as part of a continued effort to establish whether additional records are held and if so, whether he is entitled to have them released to him under the FOI Act. In this regard, I refer to the summary of the background to the dispute set out above and to the previous involvement of this Office in reviews arising from earlier FOI requests. While this is not definitive, I note that the applicant's requests appear to describe the records clearly by reference to date etc. and that they do not extend to asking questions of or making comment about the public body.
When looked at in the context of the legal and financial disputes still apparently ongoing and arising directly from the subject matter of the records, I do not consider that there is sufficient evidence before me to support a view that the applicant's motive should be classed as causing nuisance to a public body or some similar objective unrelated to securing access to information in the records. I note also that, rightly or wrongly, the applicant believes that important information the subject of previous FOI requests would not have come to light except for the FOI process and that claims allegedly made by the NSCDA in relation to previously withheld records proved not to be sustainable. While I make no comment on the likelihood or otherwise of further records falling to be released or on the allegations made, I do not believe that the applicant's pattern of requests has the purpose of harassing or burdening the public body.
I accept, of course, that dealing with large and complex FOI requests can place a heavy administrative burden on public bodies. My Office has not taken a position in these cases on whether refusal of access under Section 10(1)(c) of the Act would have been open to the public body - the NSCDA. This is because (a) the NSCDA did not search for or retrieve the records given its decisions to apply section 10(1)(e) so it is not clear as to whether the records within scope are of such number or nature that their retrieval and examination would cause a substantial and unreasonable interference with, or disruption to, its work and (b) in order to refuse the requests under section 10(1)(c), there is a requirement under section 10(2) that the public body first engages with the requester to assist in trying to amend the request.
On balance, I find that the NSCDA's decisions that the requests form part of a pattern of manifestly unreasonable requests such that section 10(1)(e) applies are not justified in the circumstances of these cases.
Having carried out a review under section 34(2) of the FOI Act, I hereby annul the NSCDA's refusal of both requests. I direct that it undertake a fresh decision making process and inform the applicant of the outcome in accordance with the requirements of section 8 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.