Case number: 160079
This review has its background in a complaint that the applicant submitted to the Council on behalf of a local community group concerning a member of the Council's staff. As the group was not satisfied with the decision on its complaint, I understand that it submitted a complaint to the Ombudsman in relation to the Council. The applicant subsequently submitted a very detailed FOI request to the Council on 7 July 2015 on behalf of the group, seeking records held by it relating to various interactions the group had with named Council staff members and records of related meetings and discussions. There were 104 separate parts to the request over 27 pages.
On 4 August 2015, the Council issued a decision refusing the applicant's request under section 15(1)(g) of the FOI Act 2014, but did not provide any further information as to the basis of its decision. The applicant requested an internal review on 17 August 2015, stating that the Council's decision had not shown reasonable and/or sufficient grounds for refusing the request. On 8 September 2015 the Council affirmed its original decision on the basis that the request in of itself comprised a pattern of manifestly unreasonable requests. On 19 February 2016, the applicant sought a review by this Office of the Council's decision.
In conducting my review, I have had regard to the Council's decisions on the request concerned and its communications with this Office, and to the applicant's communications with this Office and with the Council.
This review is solely concerned with whether the Council was justified in its decision to refuse the applicant's request under section 15(1)(g) of the FOI Act.
The applicant has raised a number of concerns about the manner in which the Council processed her FOI request. I wish to explain at the outset that the Commissioner's remit does not extend to examining the administrative actions of public bodies. Furthermore, it is important to note that this review has been conducted under section 22(2) of the Act and cannot therefore be extended into a wider investigation into how the FOI request was handled by the Council. Such an investigation, were it to take place, could only be initiated by the Commissioner under section 44(1) of the Act.
I also wish to draw the applicant's attention to the provisions of section 45(6) of the FOI Act. This section provides that the procedure for conducting a review under section 22 shall be such as the Commissioner considers appropriate in all the circumstances of the case and shall be as informal as is consistent with the due performance of the functions of the Commissioner.
Finally, I wish to explain that a review by this Office is considered to be a de novo review which means that my decision is made in light of the facts and circumstances as they apply at the date of that decision.
A request may be refused under section 15(1)(g) where the public body considers that the request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests from the same requester.
This Office considers that a request may be regarded as frivolous or vexatious where it has either 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. It has also previously set out a number of non-exhaustive factors considered to be relevant in assessing whether a request may be categorised as frivolous or vexatious. 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?
In her internal review decision, the Council's internal reviewer acknowledged that the original decision had not given reasons for refusing the request under section 15(1)(g). She proceeded to refer to a report subsequently prepared by the original decision setting out his understanding of the Council's previous dealings with the applicant. The original decision maker stated that the applicant had submitted a significant amount of correspondence to its Operations Department over a period of just in excess of three months, sometimes four letters in a single day, concerning what he described as a variety of relatively minor, routine and insignificant issues. The Council provided copies of the correspondence in question to this Office for the purposes of this review. The decision maker argued that the tone of the correspondence was consistently adversarial and he stated that the applicant subsequently proceeded to lodge a formal complaint, comprising of 23 individual complaints expanding to 620 component parts, in relation to a named Council official. He further stated that the complaint was investigated in accordance with the Council's Citizens Charter and responded to in detail, that the applicant subsequently appealed that response, and that following further examination, the response was subsequently affirmed by the Council.
It is clear that the original decision maker based his decision to refuse the request under section 15(1)(g) on his views as to the manner of the applicant's prior dealings with the Council. The internal reviewer had regard to this report and also considered the request in light of the non-exhaustive factors previously identified by this Office as being relevant when assessing whether a request may be categorised as frivolous or vexatious. She concluded that the request, totalling 104 separate requests for records is, in itself, a pattern of manifestly unreasonable requests.
In a subsequent submission made to this Office during the course of the review, the Council argued that the nature of the request, running to 27 pages and containing 104 separate parts, is most unusual. It argued that the language used is quite legalistic in tone and content and that the use of such language could be regarded as imposing an additional and onerous burden on public officials who do not have a legal background. It argued that the request for several correspondence records already in the applicant's possession and electronic soft copies of same with the metacontent preserved appears to be indicative of a degree of distrust not supported by any facts.
The application made an extensive, detailed submission to this Office setting out nine grounds for her application for review, some of which are not relevant to this review. As I have outlined above, this review is concerned solely with whether the Council was justified in its decision to refuse the applicant's request under section 15(1)(g) of the FOI Act. I note, for example, that one of the grounds cited is based on the fact that the original decision maker failed to provide reasons for refusing the request under section 15(1)(g). While the failure to provide reasons is clearly a breach of the requirement to do so as set out in section 13(2)(d), it does not, of itself, provide a basis for a finding by this Office that the decision was not justified. Furthermore, the applicant is incorrect, in my view, in arguing that the internal reviewer was not entitled to consider issues that were not considered at original decision stage or that she should not have considered previous decisions issued by this Office when conducting the review. Under section 21(2), following an internal review, the internal reviewer may affirm or vary an original decision, or may annul the decision and make such decision in relation to the matter as he or she considers appropriate. In doing so, it is entirely appropriate, in my view, that the internal reviewer would have regard to what he or she considers to be the relevant facts and circumstances.
In essence, the applicant's position is that the decision to refuse her request under 15(1)(g) is not supported by the facts. She argued that the report of the original decision maker which the internal reviewer relied upon was biased and is essentially incorrect. She also argued that she made no previous FOI requests to the Council and that a single request cannot represent a pattern of manifestly unreasonable requests. She further argued that her 104 part request was reasonable in the context of the Group's dealings with the Council and the number of staff members involved. She also stated that she made detailed and specific references to records in order to assist the Council in identifying relevant records and that she sought the records in order to support her complaint to the Ombudsman.
I agree with the applicant that a single request cannot represent a pattern of manifestly unreasonable requests. Furthermore, the fact that the language used in the request may be legalistic in tone is not a relevant ground, in my view, for supporting a finding that the request is frivolous or vexatious. However, it is entirely legitimate to have regard to the nature of the single request when considering whether a refusal under section 15(1)(g) was justified.
In my view, the nature of the applicant's request is both unusually detailed and excessively broad, having regard to the extent of the information and the nature and number of items sought. The applicant stated that the records sought include "documentation, delivery dockets, invoices, goods received notes, mileage claims, phone records, emails, work journals, diaries, meeting notes, work instructions, statements, notebook entries, photographs, casual notes [and] annotations on documents", while noting that this list "is not exhaustive".
In my view, the request would be seen as excessively burdensome by any reasonable person. For instance, she sought "each, all and any record" relating to each specific item of correspondence listed in her FOI request, "to include associated correspondence, memoranda, notes, annotations, sources and verification", stating again in many instances that "this list is not exhaustive". While she stated that she did not require copies of records submitted by her to the Council, she stated that she was seeking copies of any such correspondence which bears "annotations, comments or associated memos". Furthermore, many of the items which the applicant sought "each, all and any record relating to" are very specific and increasingly detailed; for instance, five items (Nos. 8-12, 27) refer to records relating to the delivery, storage and distribution of tulip bulbs and another eleven (Nos. 50-56, 60, 81-83) relate to a bulb planting event. In the case of a number of items, she sought electronic soft copies of specific records "with the metacontent preserved".
I am also of the view that the context in which the request was made is a relevant consideration in this case. Having examined the correspondence between the applicant and the Council that was forwarded to this Office, it would appear that the relationship between both parties deteriorated following a brief email the Council sent to the applicant on 3 October concerning the sowing of bulbs. While it is unfortunate that the relationship deteriorated, there remains a responsibility on both parties to use the FOI Act in a fair and reasonable manner. While this Office takes the view that the FOI Act demands that FOI bodies meet very high standards in dealing with requests, it is also of the view that the Act assumes reasonable behaviour on the part of requesters. In my view, the detailed and wide ranging nature of the request in this case on what is, essentially, a trivial matter, is as a direct result of the breakdown in the relationship. I am not convinced that the primary purpose of the request is to simply avail of a right of access to records held by the Council, particularly given those parts of the request seeking access to electronic copies of records with the metacontent preserved. I take the view that the request as framed comprises an abuse of the right of access.
Accordingly, having regard to the nature and scope of the request submitted by the applicant, and in the context of her related previous dealings with the Council, I find that the Council was justified in its decision to refuse her request under section 15(g) of the FOI Act.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the Council's decision to refuse the applicant's FOI 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.