Whether the Department was justified in refusing access to records relating to the applicant and election observation on the basis that his request was frivolous and vexatious and formed part of a pattern of manifestly unreasonable requests under section 15(1)(g) of the FOI Act
23 December 2019
The parties to the review in this case are the same parties that were involved in a review I conducted in 2016. In the earlier case (No. 160308), I issued a decision on 4 November 2016 wherein I affirmed a decision of the Department to refuse the applicant's request for certain records relating to a grant scheme paid to members of a roster of election observers under section 15(1)(g) of the FOI Act on the ground that the request was vexatious.
The Department administers a roster of observers for international election observation missions that are organised, in the main, by the Organisation for Security and Cooperation in Europe (OSCE) and the EU. In its submission in Case 160308, the Department explained that following a review of the previous roster which had been in operation for a number of years, and of which the applicant had been a member, it was decided in 2012 to issue a call for new roster members to strengthen the roster and bring it more into line with changing international priorities.
The Department stated that the applicant’s application for inclusion on the roster was assessed in the same way as all other applicants and that he was not appointed to the roster. It added that since then, he made numerous requests for information through various channels. It argued that the requests submitted, including the one that was the subject of the review in Case 160308, formed part of a long-running and unsuccessful pursuit of his grievance concerning his unsuccessful application to be part of the roster in 2013. It argued that there was evidence of a clear and repeated pattern of conduct and communications relating to the roster, which passed the stage of reasonableness and which it considered to be vexatious.
I was satisfied that the applicant's request to the Department was directly related to his ongoing grievance relating to his exclusion from the roster. I found that submitting FOI requests had become an integral part of his strategy in pursuing that matter with the Department and that the purpose of his request was directed at an objective unrelated to the right of access to records, i.e. that he was using FOI tactically for the purpose of pursuing the dispute. I found that a pattern of conduct existed relating to the use of FOI which suggested an abuse of the FOI process, with no regard for the burden which the pursuit of his grievance had placed on the Department. I found that the Department was justified in deciding to refuse the request at issue on the ground that it was vexatious.
The applicant appealed my decision to the High Court. The High Court dismissed that appeal on 7 March 2018. The applicant subsequently appealed the decision of the High Court to the Court of Appeal on 3 May 2018. At the date of this decision, the appeal hearing has not yet taken place.
I understand that Department ran a further process in 2018 to establish a new roster and that the applicant was not selected for inclusion on the new roster.
In a request dated 9 August 2018, the applicant sought access to records relating to him “arising or in connection with [his] interest in and commitment to election observation”. He stated that he did not require any records that the Department had already “fully released” to him under the FOI Act or data protection legislation. On 5 September 2018, the Department refused the request under section 15(1)(g) of the FOI Act.
On 12 September 2018, the applicant emailed the Department and suggested that the Department may have misunderstood that his request was for personal information and he offered to allow the Department further time to process his request. On 24 September 2018, the Department’s decision maker provided further information relating to her decision to refuse the request.
On the same day, the applicant challenged the decision maker’s entitlement to find that this request was vexatious and asked for clarification as to whether his request was also deemed to be frivolous or to form part of a pattern of manifestly unreasonable requests. Two days later, he issued a reminder that he was awaiting a reply to his earlier email as he was “most anxious to file an internal review application”. On 28 September 2018, the decision maker confirmed that she was refusing the request under all three arms of section 15(1)(g). She explained that should he wish to appeal the decision, he could so in writing by 3 October 2018. On the same day, the applicant sent yet another email to the Department wherein he stated that he was “most anxious to make an internal review application/submission” and stated that he was seeking further information “to further that end”.
On 2 October 2018, the Department informed the applicant that it had submitted his request to a more senior officer for internal review. While it appears that the applicant did not formally apply for an internal review, I am not aware that he had any objection to this course of action. On 22 October 2018, the Department affirmed its decision to refuse the applicant’s request under section 15(1)(g). On 19 January 2019, the applicant sought a review by this Office of the Department’s decision.
On 21 February 2019, Ms Murdiff of this Office informed the applicant that she understood the Department was reviewing its position relating to the applicability of section 15(1)(g) as it was processing a request he had made under data protection legislation and that the records sought under the FOI request might be released on foot of that request.
On 12 April 2019 the Department issued its decision on the applicant’s data protection request, a copy of which the applicant forwarded to this Office. Noting that the Department had withheld some records and that the applicant had not expressed a wish to withdraw his application for review, the review proceeded.
In a subsequent submission to this Office, the Department acknowledged that most of the records within the scope of the applicant’s FOI request had been provided to him under the data protection request. However, it remained of the view that the applicant’s FOI request was frivolous and vexatious and that it formed part of a pattern of manifestly unreasonable requests.
During the review, this Office’s Investigator wrote to the applicant, outlining new issues relied upon by the Department in its submission to this Office other than those set out in its original and internal review decisions and related correspondence with him. Among other things, she drew the applicant’s attention to the fact that the Department was also relying upon the judgment of the High Court in the proceedings referenced above. She informed him of her view that the Department was justified in its decision to refuse his request, on the basis that it was vexatious. He did not agree with her view and made a number of submissions to this effect.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the various submissions made by the applicant and by the Department in support of its decision. I have also had regard to the correspondence between the parties as set out above. I have decided to conclude this review by way of a formal, binding decision.
Scope of Review
This review is solely concerned with whether the Department was justified in its decision to refuse the applicant’s request under section 15(1)(g) of the FOI Act.
During the course of the review, the applicant expressed numerous concerns about the fairness of the review process. For example, he expressed concerns of potential bias arising from the involvement in the reviews of the same staff members who were involved in the review in Case 160308. He also challenged the refusal of this Office to provide him with a copy of the Department’s submissions, notwithstanding the fact that he is fully aware of this Office’s policy on that matter, and notwithstanding the fact that this matter was addressed by the High Court in the proceedings referenced above. In her judgement, O’Regan J. found that the non-furnishing of third-party submissions did not breach any constitutional right of the applicant or breach fair procedure.
While I do not propose to deal with each and every point raised by the applicant, I can confirm that I have had regard to the entirety of his submissions and to all of his related correspondence with this Office on the review. Section 45(6) of the Act 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. In all circumstances, this Office aims to ensure that the approach adopted is fair, and seen to be fair, to all the parties concerned. I am satisfied that the review in this case has been carried out fairly, without bias, and in accordance with the provisions of the FOI Act.
I should add that a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision.
The Department refused to grant the applicant's request under section 15(1)(g) of the Act. That section provides for the refusal of a request 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. The section identifies three characteristics of a request which may lead to a decision to refuse a request; namely that the request is frivolous, vexatious, or forms part of a pattern of manifestly unreasonable requests. While these are three separate characteristics, there may often be a degree of overlap. For example, a request that is frivolous may also be vexatious, and what is frivolous and/or vexatious may also form part of a pattern of manifestly unreasonable requests.
I note that the applicant challenged the Department to identify which of the arms of the provision it sought to rely on in refusing his request and that the Department indicated that it was relying on all three arms. While the Department must justify its decision to refuse the request under section 15(1)(g), it will be sufficient for the purposes of this review for it to justify its refusal under any one of the three arms. As I consider the Department’s finding that the applicant’s request was vexatious to be of most relevance, I will consider that finding in the first instance.
As the applicant is aware, this Office considers that a request may be regarded as 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. This Office deems it appropriate to consider the application in the context of (i) other requests made to the public body and, (ii) the requester’s dealings with the public body concerned. On this point, it is noteworthy that in her judgement in the aforementioned High Court proceedings, O’Regan J. found that this Office did not err in law in taking into account other matters in addition to the request that the Department had found to be vexatious.
The Department made detailed arguments in support of its refusal of the request. In response, the applicant rejected the Department’s arguments. He argued, among other things, that many of the matters relied upon by the Department were not relevant to the applicability of section 15(1)(g).
In my view, a key factor in this case is the close relationship the applicant’s request has with Case 160308. As I explained above, I found in Case 160308 that the applicant was using FOI tactically for the purpose of pursuing a dispute with the Department and that a pattern of conduct existed relating to his use of FOI which suggested an abuse of the FOI process, with no regard for the burden which the pursuit of his grievance had placed on the Department. That dispute, or grievance, relates to the applicant’s unsuccessful efforts to be included in the election observation roster.
The request at issue in this case is for records relating to the applicant “arising or in connection with [his] interest in and commitment to election observation”. In my decision in Case 160308, I formed the view that from the time he was unsuccessful in his application for appointment to the election observation roster in 2013, the applicant had pursued all available avenues to challenge the decision, including through making FOI requests. I noted from an email he sent to the Department on 12 June 2016 that he stated that it was his intention to "pursue a resolution" of the non-payment of the grant and his ongoing exclusion from nominations for election observation opportunities by the Department "by using various fora" and "ultimately if necessary by litigation".
Having regard to the nature of the request in this case, I am satisfied that it represents a continuation of that same pattern of conduct relating to the applicant’s use of FOI that I found to be an abuse of process in Case 160308. I find that the request is yet another example of the applicant having shown little or no regard for the significant burden that his use of FOI in relation to the election observation roster has placed on the relevant section of the Department. As such, I find that the Department was justified in refusing the request under section 15(1)(g) on the ground that it was vexatious. Having so found, I do not deem it necessary to consider whether it was also justified in finding that the request was frivolous or forms part of a pattern of manifestly unreasonable requests.
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 request under section 15(1)(g) of the Act on the grounds that it is vexatious.
Right of Appeal
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.