Case number: 99151
Fee and deposit - whether information already provided to another requester free of charge - whether fee represented unfair discriminatory charging - whether fee amount appropriate - consideration of section 47(1) - consideration of fee estimate - section 47(2) - consideration of fee quantum - section 47(3) - frivolous or vexatious - consideration of section 10(1)(e).
Mr ABW applied for a listing of all files in the control of the Department. The Department replied indicating an estimate of 5.5 hours to efficiently complete the search and retrieval work on the request. It advised that having regard to this estimate it proposed to charge the sum of £90.75 and that the search and retrieval work would not would not commence until such time as Mr ABW paid an initial deposit of £18.15. It also claimed that Mr ABW was abusing the procedures for making requests under the Act. Mr ABW claimed that the information he requested had already been provided to another requester free of charge and that the fee in this case represented an example of unfair discriminatory charging.
The Commissioner indicated that, although he would be slow to disturb an estimate of a public body in relation to a fee for search and retrieval, he would, in all cases, expect the public body to explain how its estimate was arrived at. If the public body showed that there was a reasonable basis for the fee calculation he would be inclined not to interfere with its decision.
The Commissioner found that the method of search and retrieval taken into account by the Department in arriving at the basis of the fee charged to Mr ABW was an efficient one. He found Mr ABW's claim that the information which he sought had already been provided to another requester was not correct. He found that Mr ABW's assertion of unfair discriminatory charging was unjustified. He was satisfied that the fee and deposit proposed were appropriate having regard to the provisions of section 47 and he affirmed the Department's decision.
Although it was not strictly necessary for him to do so, the Commissioner considered it appropriate to offer some comments on the interpretation of section 10(1)(e) of the Act. He suggested that the phrase "frivolous or vexatious" in that section was apt to cover requests made as part of a pattern of conduct which amounted to an abuse of the processes of the Act or requests made in bad faith.
On 3 March 1999 Mr ABW wrote to the Department of Enterprise, Trade and Employment making an application, under the Freedom of Information Act, 1997 (FOI Act) for "a listing of all files in the control of the Department". The Department replied on 16 March 1999 indicating an estimate of 5.5 hours to efficiently complete the search and retrieval work on the request. The reply further indicated that, having regard to the prescribed hourly amount of £16.50, the Department proposed to levy a fee of £90.75. On the basis that the estimated fee exceeded £40, it was further indicated that the search and retrieval work and the time limits imposed by the FOI Act for compliance with the request would not commence until such time as Mr ABW paid an initial deposit of £18.15.
On 19 March 1999 Mr ABW wrote to the Department appealing the decision to seek a fee and deposit. His letter went on to state "I believe that this request is an example of unfair discriminatory charging." The Department replied to Mr ABW on 1 April 1999 stating that following a re-examination of the estimate of the time required to comply with his original request both the fee and deposit were in order.
Mr ABW applied to this Office on 7 April 1999 for a review of the Department's decision of 1 April and, having considered the matter, I decided to grant his application and proceed with a review of that decision.
In reviewing this case, I have considered the content of the correspondence which took place between the Department and Mr ABW in relation to the fees charged. I have also considered comments made by Mr ABW in his application to me together with a detailed submission made to me by the Department. I have received a detailed explanation from the Department of how it calculated the fee and deposit.
In his letter to me of 7 April, Mr ABW indicated that he wished to highlight that "the record already exists and has been supplied to the Sunday Tribune free of charge." He went on to state "There is no legal or moral justification to seek fees for a record at hand." Notwithstanding an invitation to make a submission to this office in relation to the matter no further written submission was received from Mr ABW.
During the course of a telephone conversation with one of my officials on 20 April 1999, the Department indicated that, in anticipation of Mr ABW appealing the fee decision, it had retrieved the records and that it had taken five and a half hours to produce the listing containing the information which he had sought. On 30 April 1999 Mr ABW, also in the course of a telephone conversation with one of my officials, indicated that he did not accept that the Department had been efficient in its efforts to search and retrieve the records. When it was put to him that the Department had claimed it had introduced a new filing system in April 1998, so that there were relatively few files on it in June 1998 when the Sunday Tribune made its request, he refused to accept that this was true and repeated his claim of discrimination by the Department against him.
In a submission to me dated 12 May 1999 the Department set out, in some detail, the nature of its electronic filing system. It indicated that prior to, and in preparation for, the implementation of FOI it carried out a survey with a view to establishing the exact nature of the records which it held and the filing systems it operated. A number of separate systems were identified using indexes which were maintained on different media including paper and computer. The Department also indicated that following consultation with and advice from the Centre for Management and Organisation Development (CMOD) in the Department of Finance and the examination of systems developed by the Departments of Finance and the Taoiseach, a decision was taken to introduce a computerised system, based on the Lotus Notes package. That system was introduced from 21 April 1998, the date of the coming into operation of the FOI Act for the Department.
The Department went on to state that all business documents generated after 21 April 1998 are filed using this system and that the advantage of this approach is the creation of a clear distinction between records which predate the introduction of the Act and those which do not. The Department also argued that, through its active involvement in the Interdepartmental Records Management Working Group, full use of the expertise of CMOD and the training of its FOI staff in records management, it has produced a filing system which, in its view, is "unrivalled in any other Department, in terms of accessibility and the speed at which an accurate and up-to-date file list can be accessed and printed." While the Department set out the complexity of its computerised filing system in some detail, I do not consider it necessary to describe that complexity here. It did, however, indicate that the central control of the system operated by its FOI unit eliminates the need to contact each of the 53 sections within the Department to request the production of a separate list. It also claimed that because the listing of files can be produced centrally using only one PC and printer "the search and retrieval of the records concerned was carried out in the most efficient manner possible."
In a further submission to me dated 1 July 1999, the Department addressed the assertion made by Mr ABW that the record he sought was already in existence and had been supplied to the Sunday Tribune free of charge. The Department confirmed that the listing provided to the Sunday Tribune had, due to the much smaller volume of files included, been provided free of charge. It claimed that the record to which Mr ABW referred was a listing "related only to files held on the register from 21 April 1998 to 22 June 1998, a two month period when the filing system was in its infancy." The Department went on to state that each week substantially more new files are created and added to the existing file register and that the listing requested by Mr ABW is a completely different and revised record listing details of far more files than those which existed on 22 June 1998. It argued that the provision of a different record to the Sunday Tribune which contained only a fraction of the details within the scope of Mr ABW's request could not reduce the search and retrieval time needed to comply with his request. Precisely the same steps would be needed to provide only the details of the additional files. It further argued that Mr ABW did not request a copy of the listing supplied to the Sunday Tribune but specifically requested a listing of all files in the control of the Department. The Department went on to state that given the number of additions to the older file register "the appropriate course of action was the provision of the current listing and the application of fee charges in order to search and retrieve the listing was seen as justifiable in this instance."
Referring to Mr ABW's assertion that the decision to impose a charge in this case was "an example of unfair discriminatory charging" the Department stated that this claim was "totally unjustified." In support of its rebuttal of Mr ABW's claim of discrimination, the Department argued that Mr ABW was one of six FOI requesters to the Department who were charged and paid fees in relation to their requests. It went on to list the number of requests made by each of those requesters and the fee charges levied upon them, up to the date of Mr ABW's request in this case, as follows :
"1. Requester number one had made only one request and paid £107.25 for the records requested.2. Requester number two had made a total of three requests and paid £39.50 for fee charges for only one request.3. Requester number three had made one request and was charged £14.62.4. Requester number four had made only one request and up to the date of Mr ABW's request had paid a deposit of £47.85.5. Requester number five had made a total of eleven requests and had paid a total of £54.96 for three of his eleven FOI requests.6. Mr ABW had made a total of 151 requests and had paid £5.68 for only one request."
The Department went on to state "From our experience, Mr ABW has used every mechanism possible to avoid the payment of fees. He deliberately circumvents the provisions of the Act with regard to charging of fees, which in the Department's view is a total abuse of the Act." It went on to state that Mr ABW had used the Department's attempts to impose legitimate fees "as a means of usurping even more resources of the Department using the following processes to varying degrees on each occasion :
- submits broad multi-part requests- decision maker appointed; estimate of search and retrieval-deposit letter from Department- seeks explanation of breakdown/basis of deposit- insists on written section 47(8) statement- ignores section 47(8) statement - proceeds to internal review of deposit- appeals officer appointed; appeal decision issued- appeal of deposit to Commissioner
If Department decision upheld;- alter request- decision maker proceeds to decision- internal review decision (usually including grounds of inadequate search)- appeal decision to Commissioner- Department produces submissions to Commissioner"
The Department went on to state, and I have used its emphasis here, that "This approach must be viewed in the context of an individual who has made 182 requests to this Department (67 more than the entire Irish media added together)" . It was also submitted to me that even the most laudable procedures, such as those included in the FOI Act to ensure the rights of requesters, can be abused. The Department stated that its comments in this regard were not in any way critical of the procedures in the Act, only of the abuse of those procedures "uniquely, by this requester." The Department went on to quote the words of Mr Tom Wright, the Ontario Information and Privacy Commissioner in the case of the London Police Services Board (ORDER M-618 (Appeals M-9400511, M-9400628, M-9400645, M-9400647 and M-9400728)) as follows :
"When "open-ended" rights are granted by legislation, such as the right of access to information set out in section 4(1) of the Act, and the Legislature has not expressly built in reasonable limits or other controls on the unbridled use of processes designed to secure those rights, in my view, it falls to those charged with administering the legislation and its processes to do so in a manner that is fair, reasonable and consistent with the legislative purpose.
[The requester] may, in principle, have an unlimited right of access to government information, subject only to the exemptions set out in the Act. However, in my opinion, he does not have an unlimited right of access to the processes available to secure those rights. This is the point at which, in my view, the submissions [on behalf of the requester] fail to pass the most important test for the interpretation and administration of any statute - the test of reasonableness."
In conclusion the Department submitted that the fee and deposit sought in this case are reasonable.
The Department has strongly urged me not simply to treat this request as if it were from a requester who had only made this one request. Notwithstanding this it seems to me that I must treat each case presented to me on its own merits. I wish to make it clear at the outset, therefore, that while I am required to consider such submissions as are made to me by the affected parties, my decision in this case will relate solely to the matter of the fee and deposit charged to Mr ABW in respect of his request for a listing of the files under the control of the Department. I will, however, have some comments to make in relation to the Department's claims that Mr ABW, through his use of the FOI Act, has sought to abuse the procedures of the Act and to usurp the resources of the Department and I will return to this later.
The position in relation to the charging of fees under the FOI Act is set out in section 47 of the Act. Section 47(1) provides for the charging of fees -
"of such amount as may be appropriate having regard to the provisions of this section".
Section 47(2) allows for the charging of a fee for
" the estimated cost of the search for and retrieval of the record concerned.........as determined by the head concerned".
Section 47(3) relates to the amount that can be charged and states that :
"the amount of the cost of the search for and retrieval of a record shall be calculated at the rate of such amount per hour as stands prescribed for the time being in respect of the time that was spent, or ought, in the opinion of the head concerned, to have been spent, by each person concerned in carrying out the search and retrieval efficiently....."
The rate referred to in section 47(3) was prescribed in the Freedom of Information Act, 1997 (Section 47(3)) Regulations, 1998 [Statutory Instrument No. 139 of 1998] dated 1 May, 1998, at £16.50 per hour.
In a response to questions put by my Office in relation to the procedure used to calculate the fees, the Department emphasised the fact that section 47(2) of the Act refers to the estimated cost for search and retrieval. It submitted that I should only interfere with the amount of the fee decided upon if I am of the view that no reasonable person could possibly arrive at such an estimate. The Department did not explain the basis for this view and I note in this connection that the FOI Act does not explicitly set out in relation to section 47 (or any other section) what standard of review I should apply to decisions of public bodies. However, the following comments will illustrate the approach which I take to reviews of decisions under section 47.
Section 34(12) provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to my satisfaction that the decision was justified. I note that these provisions do not apply to a decision under section 47. This is hardly surprising. Many (although not all) disputes about fees will turn on the question of the head's estimate of the time to be spent on a search, retrieval and copying exercise that has yet to take place. It would be strange, indeed, if the legislation were to raise a presumption that an estimate was not justified and to require the head to rebut this presumption in the course of a review by me.
Whilst public bodies are clearly under a duty to use their best endeavours to estimate the cost of any search, retrieval and copying exercise in as accurate and scientific a manner as possible there will be cases in which they will have very little available material or information on which to base such an estimate. In these circumstances, the Oireachtas could hardly have intended that the Information Commissioner substitute his own estimate (based on the same evidence) for that of the public body. I incline to the view that the Oireachtas was cognisant of this practical consideration. Nevertheless, it also felt it necessary to require heads to calculate search and retrieval costs based on efficient practices. I am therefore of the view that the Oireachtas intended to confer some latitude on public bodies in their estimation of the time to be spent on a search and retrieval of records but that this latitude was to have its limits. At the same time, the FOI Act confers on the Information Commissioner the jurisdiction to vary or annul an estimate where such an estimate falls outside these limits.
Normally, in cases where the dispute between the parties turns solely on the question of the appropriateness of the public body's estimate of the time to be taken in a future search and retrieval exercise, I would be slow to disturb the decision of the public body. However, the Act clearly foresees that there will be cases in which the amount of the fee or deposit sought by the public body will be found by me to be inappropriate. In all cases, I would expect the public body to be able to explain how its estimate of the costs of search and retrieval was arrived at. If the public body concerned gives reasons for its estimate which indicate that there was a reasonable basis for the calculation of the fee or deposit decided upon by it, I would be inclined not to interfere with that decision.
While it would not normally be expected that a public body would do so, in this particular case the Department has made it clear to me that its "estimate" of the cost was based on a measurement of the time recorded for an actual search and retrieval of the requested record. Section 12 of the Act allows a head to provide access to a record in a number of different ways including by way of copy, transcript or computer disk. In this case the Department's fee decision was based on the actual time taken to produce a paper record. Given the efficiency requirement relating to the charging of fees contained in section 47(3) the question remains as to whether the time taken by the Department's search for and retrieval the record could have been reduced. I accept that, having regard to the fact that the Department maintains its register of files electronically, electronic retrieval of that register is, as a matter of fact, the only form of search and retrieval available to it.
Given that electronic retrieval was the only option, I considered whether it would have been more efficient to output the record to a computer disk. I did this purely for the sake of completeness. Mr ABW did not specify in his request the particular form or manner in which he wanted access. The Department has explained to me that in order to retrieve its register of files it was necessary to access separately the records of each subdivision, reduce the totality of the records shown so as to display only the file number and title and then to print off the resultant list with accessing and printing operations conducted concurrently. Having examined the method of retrieval used by the Department, I am satisfied that the output of the record to disk would not have been more efficient in terms of the time taken to produce the record. I find, therefore, that the method of search and retrieval taken into account by the Department in arriving at the basis of the fee charged to Mr ABW was an efficient one.
Mr ABW asserted that the charging of a fee in this case "is an example of unfair discriminatory charging." In his application to me of 7 April he went on to assert that "the record already exists and has been supplied to the Sunday Tribune free of charge." and that "There is no legal or moral justification to seek fees for a record at hand." The Department accepts that the listing provided to the Sunday Tribune was provided free of charge. It has, however, also claimed that Mr ABW did not seek access to the list provided to the Sunday Tribune but to a list which, in the intervening period, had grown significantly larger thus requiring a greater degree of effort in search and retrieval. I am satisfied that, as a matter of fact, the list requested by Mr ABW was not the same list as that previously supplied to the Sunday Tribune and that the fact that no fee was charged to the newspaper is irrelevant in considering the appropriateness of the fee charged to Mr ABW.
The Department has strenuously denied Mr ABW's assertion of "unfair discriminatory charging". It is clearly important that public bodies properly apply the provisions of the Act in relating to the charging of fees and deposits and do so in a consistent way. However, in a review of a decision of a public body, the question which I have to consider is not whether the fee or deposit decided upon by the public body is "unfair" or "discriminatory" but whether the fee or deposit was properly calculated by the public body. Nevertheless, as Mr ABW has raised the matter, I would make the following comments. The Department has cited a number of examples where charges have been levied and has confirmed to me that up to and including Mr ABW's present request it had received a total of 364 requests for information under the FOI Act of which 151, or almost 47%, had originated with Mr ABW. Fees were charged to Mr ABW on 16 occasions which represents 10.6%, of the total applications made by him. In all other cases fees were charged on 17 occasions which represents 9.8%, of the remaining cases. I am satisfied, therefore, that Mr ABW's assertion of unfair discriminatory charging is not justified.
I have already indicated that I am satisfied that the Department's "estimate" of the time required to produce the record was factually correct. The only other issues outstanding in relation to the fee charged are whether the quantum of the fee was correct and whether the deposit demanded was in accordance with the provisions of section 47. The answers to these questions are straightforward. The hourly amount currently prescribed for the search and retrieval of records is set out in S.I. 139 of 1998 at £16.50 per hour. Based on an estimate of 5.5 hours, this results in a total charge of £90.75 - the amount which the Department proposed to charge. Section 47(7)(a) provides for the charging of a deposit and states :
"(7) Where, in the opinion of the head concerned, the estimated cost, as determined by the head, of the search for and retrieval of a record the subject of a request under section 7 is likely to exceed £40 or such other amount as may stand determined for the time being -
(a) a deposit of such amount as may be determined by the head (not being less than 20 per cent of such cost) shall be charged by the public body concerned and paid by the requester concerned to the body,.........."
As the fee exceeded £40 in this case the Department charged a deposit of £18.15 which amounts to exactly 20 per cent of £90.75.
I am satisfied that the amounts of both the fee and the deposit proposed by the Department were appropriate having regard to the provisions of section 47 of the FOI Act.
The Department accused Mr ABW of abusing the Act and urged me to comment on this. It indicated that, in the past, it had refused certain parts of Mr ABW's requests on the grounds that they were frivolous or vexatious. It did not claim that the instant request could be so described. Therefore, strictly speaking, there is no need for me to deal with this point. However, as the point is of general importance to public bodies in relation to the practical application and operation of the provisions of the Act, it is appropriate that I offer some comments on the interpretation of section 10(1)(e) of the Act. These comments are not intended as a definitive interpretation of the expression "frivolous or vexatious". I have articulated these views in order to give some guidance to public bodies as to the interpretation of this expression in future cases.
Section 10(1)(e) permits a public body to refuse a request which, in its opinion, is 'frivolous or vexatious'. The Act does not attempt to define this term. In the absence of any statutory definition, it seems to me that there are a number of possible approaches to the interpretation of this phrase. The first is to look at the words separately and to give them their ordinary meanings. I note that the Oxford English Dictionary (OED) defines frivolous in its non-legal sense as "of little or no weight, value or importance; paltry, trumpery, not worthy of serious attention; having no reasonable ground or purpose". It defines vexatious (in its non-legal sense) as "causing, tending or disposed to cause, vexation".
The adoption of either or both of these definitions in interpreting section 10(1)(e) gives rise to difficulties. Whether a request is "frivolous" in terms of the OED definition can depend on the circumstances of the requester. A request which is of little importance to one requester can be of vital concern to another. However, the FOI Act does not require requesters to justify why they are exercising their rights. Indeed, section 8(4) requires the public body, in dealing with a request, to disregard any reason that the requester gives for the request and any belief or opinion of the head as to what are the reasons of the requester for the request. It seems to me that such a provision is incompatible with an approach that would permit public bodies to refuse requests on the grounds that they were of little or no value or had no reasonable value or purpose. I do not wish to say that it is impossible for a request to be judged as frivolous by virtue of its contents. There may be unusual cases where this could be so. However, in such cases I would expect that the request will also involve an element of abuse of process - a point to which I shall return below.
A problem also arises in relation to adopting a dictionary definition of the word "vexatious" in section 10(1)(e). The fact is that many public bodies find requests annoying in one way or another. In some cases, this may be because they see processing the request as time consuming and a distraction from business which they consider more important. In other cases, they may suspect that the requester's motivation is to cause harassment. However, once again it is hardly consistent with an access regime which is open to all and where the public body is required to disregard the reasons for a request, to permit requests to be turned down on such grounds.
Another approach to interpreting the words 'frivolous or vexatious' is to treat the phrase as synonymous with the expression 'frivolous and [or] vexatious', which is used in various legal contexts, but in particular in the context of proceedings before a Court or tribunal. In the High Court decision in D.K. v. A.K.  I.L.R.M., 710, Costello, J. (as he then was) dealt with an application to have the relevant action stayed or dismissed under Order 19, Rule 28 of the Rules of the Superior Courts and also to strike out the action in exercise of the Court's inherent jurisdiction so to do. Order 19, Rule 28 provides that an action may be stayed or dismissed by the Court where the action is shown by the pleadings to be "frivolous or vexatious". Costello, J. did not expand upon what that expression meant, simply saying that he did not think the plaintiff's action in that case could be so regarded. He then went on to consider whether the plaintiff's claims should nevertheless be struck out in exercise of the Court's inherent jurisdiction, referred to above. On page 713, Costello, J. said that
"[t]he principles on which the court will exercise its inherent jurisdiction to strike out a plaintiff's claim can be shortly stated. Basically the jurisdiction exists to ensure that an abuse of the court's process does not take place. If it is established by satisfactory evidence that the proceedings are frivolous or vexatious or if it is clear that the plaintiff's action must fail, then the court may stay the action. But it will only exercise this jurisdiction sparingly and in clear cases (Barry v. Buckley  I.R., 306; Sun Fat Chan v. Osseous Ltd.  I.R., 425)."
Clearly, Costello, J. considered that a "frivolous or vexatious" action was one which abused the process of the court. Similarly, in the decision of the Canadian Federal Court in Larden v. R and Others (1998), the expression, when used in relation to court proceedings, was interpreted thus :
"A frivolous and vexatious action includes a proceeding which is brought or carried on by a plaintiff who is not acting bona fide: it is a proceeding which will not lead to a practical result. The words frivolous and vexatious define a claim which is obviously unsustainable: Attorney General of the Duchy of Lancaster v London and North Western Railway Company  3 Ch. 274 at 277 (C.A.). The expression frivolous and vexatious includes proceedings which are an abuse of process: Ashmore v British Coal Corporation  2 Q.B. 338 at 347 (C.A.). An abusive action is one which misuses or perverts the procedure of the Court. It has been characterised as an action which can lead to no possible good, one where the defendants are to be dragged through long and expensive litigation for no possible benefit: see Lord Justice Bowen's judgement in Willis v Earl Beauchamp (1886) 11 P.D. 59 at 63 (C.A.)".
The OED defines the words, in their legal sense, as "Frivolous: (in relation to a pleading) manifestly insufficient or futile; Vexatious: (in relation to legal actions) instituted without sufficient grounds for the purpose of causing trouble or annoyance to the defendant".
It seems to me that the expression 'frivolous or vexatious' in section 10(1)(e) cannot mean quite the same thing as the same expression when used in the context of court and other proceedings and in other statutory contexts. In particular, the concepts of 'obvious unsustainability', 'benefit' and 'sufficiency of grounds' do not accord with the statutory scheme of the FOI Act, under which a public body is obliged to grant a request for access unless the record is exempt, without regard to any reasons lying, or believed to lie, behind the request. However, it seems to me that the concept of abuse of process which the phrase 'frivolous and vexatious' also covers provides an indication of the meaning to be given to the phrase 'frivolous or vexatious' in section 10(1)(e).
I am fortified in my view that the provisions of section 10(1)(e) are aimed at abuses of the processes set out in the Act by the approach taken in this matter in Ontario, Canada. The Ontario Municipal Freedom of Information and Protection of Privacy Act (R.S.O. 1990, Chap.M.56) is similar to the Irish FOI Act. The Ontario Municipal Act provides that every person has a right of access to records held by "an institution" unless the record or part of the record falls within one of the exemptions contained in the legislation or the head of the relevant institution is of the opinion on reasonable grounds that the request for access is frivolous or vexatious. A regulation made under the Act and known as Regulation 823 provides guidance as to how to determine whether or not a request is frivolous or vexatious.
The Regulation provides that a head shall conclude that a request for a record is frivolous or vexatious if
" (a) the head is of the opinion on reasonable grounds that the request is part of a pattern of conduct that amounts to an abuse of the right of access or that would interfere with the operations of the institution; or
(b) the head is of the opinion on reasonable grounds that the request is made in bad faith or for a purpose other than to obtain access."
There is a close similarity between the provisions of the Ontario Municipal Act and the Irish Act. It seems to me that the guidance given in the regulation is useful in interpreting section 10(1)(e), given the almost identical statutory context. It would not be appropriate to adopt fully the Ontario definition because, for one thing, it overlaps with section 10(1)(c) which permits refusal on the grounds that the work involved in granting the request would cause a substantial and unreasonable interference with or disruption of the other work of the public body. However, in my view the concepts of abuse of the right of access and the making of requests in bad faith are of assistance in determining how the provisions of sections 10(1)(e) should be applied.
A number of the reported decisions of the Ontario Information and Privacy Commissioner relate to claims that requests were frivolous or vexatious. Those decisions put some flesh on the bare bones of the provisions of the regulations and, in particular, elucidate on what is meant by a "pattern of conduct", when such a pattern amounts to an "abuse of the right of access" and when such a request is made "in bad faith". The seminal decision, to which many of the reported decisions refer, is that signed by Assistant Commissioner Mitchinson and known as Order M-850, Appeal M-9600149, Town of Midland.
The first point to note is that the Assistant Commissioner was at pains to point out that the discretionary power to refuse a request for access on the grounds of frivolousness or vexatiousness (and thus to affect seriously the ability of a requester to obtain information under the Act) should not be exercised lightly. The oft-quoted guidance given by the Assistant Commissioner in the Town of Midland decision on the matters mentioned above may be summarised as follows:
(i) the requests are varied in nature and broad in scope; (ii) there is the appearance that they were submitted for their nuisance value; (iii) there may be increased requests and appeals following the initiation of court proceedings by the institution; (iv) the requester may be working in concert with another requester whose publicly stated aim was to harass government and to break or burden the system.
It seems to me that in considering whether a particular request is frivolous or vexatious it is better, in the context of the Irish FOI Act, to concentrate on the concept of abuse of process or evidence of bad faith and to look at the purpose of the Act, as disclosed by its long title and specific provisions and at the nature of the process.
It is first necessary to recall the purpose of the Act. According to its long title it is :
"An Act 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 and to enable persons to have personal information relating to them in the possession of such bodies corrected and, accordingly, to provide for a right of access to records held by such bodies, for necessary exceptions to that right and for assistance to persons to enable them to exercise it, ....."
It is clear that the Act intends to grant a far reaching right of access to records held by public bodies. The right is a general right, not confined to a specific class of requesters and therefore capable of being exercised by a large number of persons. The long title also recognises that there are necessary exceptions to this right. The Act, in its specific provisions, sets out these exceptions in great detail. The proper application of such exceptions requires care on the part of a public body and can be a difficult and time-consuming exercise.
The Act also requires, both in its long title and in section 6(2), that a public body give reasonable assistance to a person who is seeking a record under the Act. It goes on to provide in great detail how requests should be dealt with, imposing strict requirements on public bodies to redirect requests to the appropriate body, to deal with requests within a strict deadline, to provide for a review by a more senior official of a request which has been refused, to explain the reasons for its decisions and to inform requesters of their rights of appeal.
In short, the Act demands that public bodies meet very high standards in dealing with requests. This as it should be; but the corollary is that the legislation assumes reasonable behaviour on the part of requesters. It could hardly have been the intention of the Act that a public body be required to go through the rigorous processing requirements of the Act in cases where the requester makes no effort to co-operate with the reasonable requirements of the public body. More particularly, it seems to me that certain patterns of conduct by requesters and attempts by requesters to circumvent the provisions of the Act can constitute an abuse of the process of making an FOI request and that such requests may be refused on the grounds that they are frivolous or vexatious.
The Department has given examples of certain requests made by Mr ABW which it says were frivolous or vexatious. Since it is not necessary for the purposes of this decision, I make no findings in relation to these specific claims. However, in broad terms, I identify below certain patterns of conduct which, in my view, constitute or may constitute an abuse of the processes set out in the Act. In these cases it may be correct for a public body to refuse a request on the grounds that it is frivolous or vexatious.
Requests made by the same person in or around the same time as part of a series of requests dealing with the same topic may sometimes (but not always) be treated as frivolous or vexatious. In such cases, it may clearly be inefficient from an administrative point of view and of no benefit to the requester to deal with the requests singly. In my view the Oireachtas could not have intended that public bodies be forced to deal with requests in the most administratively inconvenient way possible. In situations of this kind, it is reasonable for a public body to discuss with the requester whether the requests can be consolidated or otherwise dealt with in a way which will ease the administrative burden on the body. If the requester, without good cause, fails to agree to such suggestions, then one has to question whether the requester's concern is with gaining access to records or with forcing the public body to engage in the process of dealing with the request. In such cases, the head might understandably form the opinion that particular requests in the series are frivolous or vexatious.
Of itself, the fact that a requester has submitted a 'large' number of requests does not indicate that any of these requests is frivolous or vexatious. Apart from any other consideration the question of what constitutes a 'large' number of requests is so subjective as to be of little value, in practice, in determining whether section 10(1)(e) might apply. Also, the number of requests received by a public body, both generally and from any one requester, must depend in part on its attitude to the release of information. For example, if a public body routinely resists requests for information which, perhaps, other public bodies would release administratively then it may end up receiving a large number of FOI requests. It could hardly be correct that its subsequent difficulties in processing these requests should be laid at the door of requesters who are merely seeking to exercise their statutory rights. In saying this I am not suggesting that the difficulties which the Department has experienced with Mr ABW in the instant case are of its own making. I merely make the point to show the difficulties in refusing requests solely because the requester has made a large number of requests.
The Act does recognise that dealing with certain requests could cause a substantial and unreasonable interference with or disruption of the other work of a public body and it allows such requests to be refused under section 10(1)(c). The section refers to 'request' (singular) but it seems to me that, in the light of section 11 of the Interpretation Act 1937 (which provides that every word importing the singular shall, unless the contrary intention appears, be construed as if it also imported the plural), the section is apt to cover a situation in which one requester makes a large number of requests over a short period of time, the processing of which would cause substantial and unreasonable interference with or disruption of the other work of a public body.
Both section 10(1)(c) and section 9, which provides for deferral of access in certain cases, are a clear recognition that public bodies should not be called upon to shoulder unreasonable administrative burdens. The fact that the Act does not identify in exhaustive detail the circumstances in which such unreasonable burdens might arise does not mean that public bodies are in an administrative straitjacket, forced to process requests regardless of whether it is reasonable to do so or not. A request or requests for an unreasonably large number of records which is made in abuse of the process of the Act may take a request out of the realms of section 10(1)(c) and into those of section 10(1)(e).
While a large number of requests of itself need not be an indication of an abuse of the Act, if the number of requests made by one requester at or about the same time or in close succession is so great that no public body could possibly be expected to deal with them properly i.e. in accordance with the strict requirements imposed by the Act, then this may indicate that the request is frivolous or vexatious. If the requests all deal with the same topic and the requester, without good reason, refuses to agree to some system of consolidating such requests, then this would further suggest that the request is frivolous or vexatious. Where the requests are on diverse topics then it is reasonable for a public body to ask whether the requester can prioritise these requests and agree a timetable for dealing with them. Where, without good cause, the requester refuses to do so, then it seems to me that this is an indication that the making of certain (if not all) of the requests may be an abuse of the process of the Act and, consequently, be frivolous or vexatious.
In making these comments, and my earlier comments on series of requests, I do not wish to suggest that public bodies can be exonerated from duties which are clearly imposed on them by statute. They should not be taken as an encouragement to public bodies to ignore the rights of requesters. I make them because it seems to me that a public body is entitled to take account of what is reasonable when faced with a large number of requests, at or about the same time, from the one requester.
I do not intend to deal exhaustively with the question of what constitutes abuse of the provisions dealing with fees. However, it seems to me that abuse could arise in two ways.
The first is through requesters seeking to avoid the charges provided for by the legislation. An example of what I have in mind here is a situation where a requester, having been advised of the estimated fee to search for and retrieve records, seeks to access a lesser number of records thus reducing the fee. Such a requester might then seek to access the remaining records by making a second FOI application, claiming that the records have already been retrieved and that no fee is therefore payable in respect of the second request. In my view, requests which are clearly designed to do this may be considered to be an abuse of the Act and may stand the risk of being refused as frivolous or vexatious.
The second could arise through invoking the procedures in section 47(8) (which requires a head to specify the amendments to the request which would reduce or eliminate a deposit). Where the pattern of behaviour of the requester suggests that section 47(8) is being invoked for some purpose other than its true purpose, which is to see if any resolution of the question of the fee can be reached, then the public body might, in an appropriate case, conclude that this is an abuse of the Act. Such a conclusion might, in an appropriate case, also suggest that the request itself might be frivolous or vexatious.
All of the preceding examples identify patterns of conduct or behaviour which may constitute an abuse of the processes set out in the Act. Clearly where a requester's pattern of behaviour involves an abuse of process the fact that he or she is unwilling to co-operate with the public body is evidence of bad faith on the part of the requester. But the Mitchinson decision, dealt with earlier, makes it clear that a request could be made in bad faith (i.e. for an illegitimate or dishonest purpose with furtive design or ill will on the part of the requester) without any pattern of behaviour being present.
In practice, and in the absence of a pattern of conduct, a public body may often find it difficult to establish bad faith on the part of the requester in relation to a request. Until such a case comes before me, I would be reluctant to speculate as to particular circumstances which might be indicative of requests made in bad faith. However, on the basis of experience to date, it may be helpful to say that simply because it is clear that a requester may use the information obtained in a manner which may be disadvantageous to the public body does not imply that the request is made in bad faith.
The refusal of requests on the grounds that they are frivolous or vexatious is not something that should be undertaken lightly by public bodies. In my view, section 10(1)(e) of the FOI Act is restrictive in scope, given the terms of the Act generally and, in particular, the provisions of section 8(4) thereof, which require any reasons behind a request, whether given by the requester or perceived by the public body, to be disregarded. Public bodies should avoid imputing motives to requesters on the basis of which requests are then refused under section 10(1)(e). They should not assume that the fact that requests cause them administrative inconvenience is good enough cause to refuse requests on these grounds. As Assistant Commissioner Mitchinson pointed out, the receipt of frivolous or vexatious requests from a particular individual in the past is not in itself sufficient to conclude that a new request is automatically frivolous or vexatious. Each request must be considered on its own merits as measured against the relevant criteria.
Cases of bad faith aside, whether a request is frivolous or vexatious should be judged by reference to the pattern of behaviour of the requester in relation to the FOI request or requests under consideration. Requesters who are heavy users of the Act, and incidentally who may benefit considerably from the rights conferred by it, have a corresponding responsibility to act reasonably in relation to the processing of their requests by public bodies. Unreasonable or uncooperative behaviour by a requester in relation to the processing of a large number of requests made by him or her may justifiably lead to the conclusion that certain (if not all) of the requests on hand from that requester are frivolous or vexatious.
Having conducted a review under section 34(2), I affirm the decision of the Department of Enterprise, Trade and Employment, as notified to Mr ABW in its letter of 1 April 1999, to charge a fee of £90.75 and a deposit of £18.15 in respect of his request for a listing of all files held by the Department.