Case number: 180146
16 August 2018
The applicant in this case is the director of an Irish studbook organisation that, according to its website, specialises in the breeding of show jumping and eventing horses. It appears that this review has its background in a long running dispute the applicant has with the Department relating to his allegations that his organisation has been subject to discriminatory treatment by the Department and by HSI, the national governing body for equestrian sport in Ireland, and that the Department has granted unauthorised state aid to HSI.
According to the Department, it part-finances the operations of HSI due to the fact that it is the national body with international accreditation charged with an overall leadership role in relation to the sport horse industry and simultaneously operates a number of studbooks in which horses are registered. I note, from a document prepared by the Department that the applicant provided to this Office, that HSI receives two sources of funding from the Department. It receives funding under an equine technical support scheme which is subject to national and EU regulation, and state aid and public procurement guidelines. All studbooks approved under certain EU Regulations are entitled to submit project applications under the scheme.
The HSI also receives an annual block grant that, according to the Department, is a continuation of the financial support that was provided to the state body Board na gCapall following the transfer of functions and associated costs firstly to the Irish Horse Board and then to HSI. The Department stated that there is no competition for this funding as HSI are carrying out the work that was previously carried out by Board na gCapall. It stated that the applicant contends that HSI is a mere studbook operator and as such is in direct competition with his own business and that it should therefore receive a share of the grant aid accorded to HSI.
Between 22 February 2018 and 17 March 2018, the applicant made eight requests under the FOI Act for a broad range of records relating primarily to HSI and for reasons for the Department’s refusal to allow his organisation to apply for funding from the same sources as HSI. On 23 March 2018, the Department refused all eight requests under section 15(1)(g) of the Act. On 2 April 2018, the applicant sought an internal review of that decision. On 10 April 2018, following which the Department affirmed its original decision to refuse the requests under section 15(1)(g). The applicant sought a review by this Office of the Department's decision on 15 April 2018.
Both the applicant and the Department were invited to make submissions during the course of the review. Both parties made submissions. Having regard to that correspondence, I consider that the review should now be finalised by way of a formal, binding decision. In conducting this review I have had regard to the submissions of the parties and to correspondence between the Department and the applicant, and the applicant and this Office on the matter.
This review is solely concerned with whether the Department was justified in its decision to refuse the applicant’s requests under section 15(1)(g) of the FOI Act on the ground that they are frivolous or vexatious.
Section 15(1)(g) of the FOI Act provides that an FOI body may refuse 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. This Office has 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, including, but not limited to;
This Office is satisfied that it is entitled, by virtue of section 13(4) of the FOI Act, to take into account the motive of a requester when considering whether a request is frivolous or vexatious. In the case of Kelly v the Information Commissioner  IEHC 479, O'Malley J. stated that in determining whether a particular application should be described as vexatious, the Information Commissioner is entitled by statute to use his discretion. She stated that "[t]here 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".
In its submission of 3 May 2018, the Department stated that the eight requests at issue were the most recent in a long line of requests submitted. According to the Department, the applicant submitted a total of 23 requests, including the eight that are the subject of this review, 13 of which were submitted in 2017/18. It stated that it also has extensive correspondence with the applicant outside the FOI process and approximately 190 email contacts occurred in 2016/17, although it noted that some of those emails refer to subjects other than the subjects contained in the FOI requests. The Department added that the decision makers in this case have had many discussions on the phone that have been lengthy and repetitive. It stated that the officials concerned carried out a control check as part of the Equine Technical Support Scheme with the applicant at his premises on 12 December 2017 and that the matters which gave rise to his FOI requests were discussed at length. It stated that he also had access to the head of the Department's Livestock Breeding Production and Trade Division which has responsibility for the particular area. It stated that the applicant has been afforded ample time to air his concerns, that his position is fully understood by the Department, and that the Department has, in turn, set out its position on the issues arising.
The Department argued that the applicant is not using the FOI Act for the purposes it was intended but rather to continue what it describes as his feud against HSI. It stated that the essence of the feud concerns the fact that the Department part-finances the operations of HSI due to the fact that it is the national body with international accreditation charged with an overall leadership role in relation to the sporthorse industry and simultaneously operates a number of studbooks in which horses are registered. It stated that the applicant contends that the HSI is a mere studbook operator and as such is in direct competition with his own business and that his business should therefore receive a share of the grant aid accorded to HSI.
In his submission of 10 May 2018, the applicant stated that he has tried since 2012 to have some matters dealt with by the Department (lack of compliance with a Council Directive concerning competitions) and that he first tried to resolve other matters outside of the FOI process (illegal state aid to HSI). He stated that if the Department would engage on these issues, he would not have to resort to FOI.
The applicant argued that HSI has used its power and resources to discriminate against his organisation since its founding in 2012 and that he is seeking a level playing field and documents from the Department that will help him to create a level playing field. He argued that the Department has not engaged adequately with his organisation over the issues arising. He stated that the Minister has refused to meet with his organisation despite many written requests and that nothing came of his meetings with various Departmental staff.
The applicant argued that the purpose of the FOI requests is to obtain answers to important questions his organisation has about its preferential treatment of HSI. He alleged that the Department does not want that information disclosed because much of what it has done with respect to funding of HSI and granting derogations for restricted competitions appears to be illegal.
The applicant subsequently submitted documentation relating to a complaint he made to the European Commission and the Office of the Ombudsman against the Department. The documentation comprised the Department's submission to the Commission in response to issues raised concerning alleged unlawful state aid granted to HSI and the applicant's response to that submission. The Department's submission clearly explains why it does not accept the complaints of alleged unlawful granting of state aid to HSI, an explanation the applicant does not accept.
It is clear that the applicant has significant concerns about his organisation's treatment by HSI and the Department and that he believes that treatment to be unfair and discriminatory. It is also clear that the issue has been ongoing for a very considerable period of time (since 2012). It seems to me that the Department is fully aware of the nature of the applicant's concerns and has explained to the applicant why it does not accept the allegations made concerning the treatment of the applicant's organisation. Essentially, the Department is of the view that the requests submitted by the applicant that are the subject of this review form part of a long-running and unsuccessful pursuit of his grievance. It considers that there is evidence of a clear and repeated pattern of conduct and communications relating to the matter which has passed the stage of reasonableness and which the Department now considers to be vexatious.
While I am sure that the applicant is aware of the limits of our remit, it is worth stating that the question of whether or not the Department has a case to answer in respect of the allegations made is not a matter for consideration by this Office. I should also say that the fact that an individual is pursuing a grievance and makes a request for access to records in order to pursue that grievance does not, of itself, mean that the request must be considered to be frivolous or vexatious. Indeed, I note that of the 13 requests submitted in 2017/18 apart from the eight request at issue in this review, the Department granted or part-granted the request in 8 of those requests. Nevertheless, having regard to the comments of O'Malley J. in Kelly v the Information Commissioner  IEHC 479 as outlined above, I am satisfied that it is entirely appropriate to have regard to the broader issue of the manner in which a requester has engaged with the public body to date on a particular matter.
While the FOI Act demands that FOI bodies meet very high standards in dealing with FOI requests, this Office takes the view that the Act assumes reasonable behaviour on the part of requesters. Of the eight requests at issue, I accept that, taken in isolation, at least some of those requests appear reasonable. I note, for example the applicant's argument that he requires access to certain record to address questions about the actions of the Department's in relation to its funding of HSI, although it is also noteworthy that the applicant did not apply for a review of the Department's decision to refuse four of the requests he made in 2017/18. However, in light of the manner in which the applicant has engaged with the Department to date and the prolonged period of time involved, I consider it reasonable to consider those requests together in the context of the applicant's overall engagement with the Department.
I am satisfied that the applicant's requests are directly related to his ongoing grievance relating to his allegations concerning the treatment of his organisation and the funding of HSI. It seems to me that submitting FOI requests has become an integral part of the applicant's strategy to pursue that grievance, notwithstanding that the Department has made its position on the matter clear. It is also relevant, in my view, that the requests cover a broad range of records relating to HSI. I note the applicant's contention that he would not have to resort to submitting FOI requests if the Department would engage on the issues. However, it seems to me that it is not a question of the Department not engaging on the issues, which it appears to have done, but rather its refusal to accept the applicant's allegations.
Having considered the nature of the requests at issue, against the background of the applicant's ongoing prolonged interaction with the Department, I find that the purpose of his requests is directed at an objective unrelated to the right of access to records, i.e. it is being used tactically for the purpose of pursuing the dispute. In the circumstances, it is my view that a pattern of conduct exists relating to the use of FOI which suggests an abuse of the FOI process with no regard for the burden which the pursuit of his grievance has placed on the Department. Accordingly, I am satisfied that the Department was justified in deciding to refuse the requests at issue under section 15(1)(g) on the ground that they are vexatious.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department to refuse the applicant's eight requests under section 15(1)(g) of the FOI Act.
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.