Case number: OIC-53556-Y9M6S7 (190275) & OIC-53561-C7T6N2 (190281)
7 October 2019
This review has its background in a two-part request the applicant submitted to the Department on 13 February 2019 (Request 0036 - In referring to the various requests the applicant submitted to the Department, I have adopted shortened reference numbers that the Department assigned to those requests for ease of reference).
The first part of the request sought access to three specific types of information (monthly or quarterly service report, monthly or quarterly passenger numbers, and monthly or quarterly passenger revenue) relating to an identified vessel operated by a named ferry contractor (Contractor A) for the period April 2018 to February 2019, and the second part sought access to correspondence from an identified email account (apparently owned by a different ferry contractor – Contractor B) to the Department from January 2017 to December 2018.
On 19 February 2019, the Department informed the applicant that it had estimated the cost of searching for and retrieving relevant records to be €270 and offered him the option of amending the request to reduce or eliminate the fee payable. On 20 February 2019, in an effort to eliminate search and retrieval fees the applicant submitted a refined request to the Department. He omitted the second part of his original request and reduced the time period specified in the first part to a three month period from October 2018 to December 2018.
The Department decided to part-grant the amended request. It released the monthly vessel logs for the three months in question with the redaction of certain personal information relating to the crew members and it released details of the passenger numbers for the three months. It refused access to the passenger revenue under section 36 of the Act which is concerned with the protection of commercially sensitive information.
On 26 March 2019, the applicant submitted three further requests to the Department (Requests 0063, 0064, and 0065). The first two requests that are the subject of this review (0063 and 0064) again sought access to the same three types of information relating to Contractor A as had been sought at the first part of request 0036, but for the periods July 2018 to September 2018 and April 2018 to June 2018 respectively. The third request (0065) was similar to the second part of request 0036 and was for all emails between the Department and Contractor B from 1 January 2018 to 31 December 2018.
On 24 April 2019, the Department issued a single decision on requests 0063 and 0064. It refused both requests under section 15(1)(g) of the FOI Act on the ground that that they “appear to form a pattern along with [the applicant’s] previous similar FOI requests, which have been already responded to”.
The applicant sought an internal review of that decision on 2 May 2019, following which the Department affirmed its decision to refuse the requests under section 15(1)(g). On 4 June 2019, the applicant sought a review by this Office of the Department’s decision.
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 correspondence between the Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant on the matter.
This review is solely concerned with whether the Department was justified in its decision to refuse the applicant’s requests of 26 March 2019 (0063 and 0064) for certain information relating to an identified vessel operated by a named ferry contractor under section 15(1)(g) of the FOI Act.
Section 15(1)(g) of the FOI Act provides for the refusal of a request where the FOI 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, that it is vexatious, or that it 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.
The refusal of requests under section 15(1)(g) is not something which should be undertaken lightly. For example, FOI bodies should not assume that the fact that requests cause them administrative inconvenience provides sufficient cause for refusing the requests on these grounds. 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. The Commissioner has previously set out a number of non-exhaustive factors considered relevant in assessing whether a request may be categorised as frivolous or vexatious or as forming part of a pattern of manifestly unreasonable requests, including:
It is important to note that this list of factors is non-exhaustive and that there is no requirement for all of the factors to apply for a request to be considered frivolous or vexatious.
As outlined above, the Department refused the two requests at issue under section 15(1)(g) based on its view that they formed part of a pattern of requests the applicant made. In its submission to this Office, it indicated that it deemed the requests to be vexatious. It indicated that, considering the original request was refined to avoid search and retrieval fees, it deemed the requests to be vexatious on the basis that the applicant was attempting to gain the full breadth of information that was originally requested (request 0036) while circumventing the FOI process for charging search and retrieval fees. It stated that it considered the applicant was making the requests in bad faith and to burden the system.
The Department proceeded to provide details of other requests the applicant made, apart from the original request (0036) and the two requests that are the subject of this review:
Having regard to the Department’s reasons for refusing the request and to its submissions to this Office, it seems to me that a number of matters must be considered:
Avoidance of Fees
In his application for review to this Office, the applicant acknowledged that he submitted requests 0063 and 0064 to ensure that he was below the threshold of €100 as outlined to him by the Department in respect of request 0036. He argued that by refusing his requests under section 15(1)(g), the Department was penalising him for making requests for quarterly data as opposed to yearly. He argued that making quarterly fees as opposed to paying fees of €270 is not unreasonable.
I accept that, in certain circumstances, an FOI body may appropriately find certain requests that have been submitted in place of a previous single request in order to circumvent certain provisions of the Act, including the provisions relating to search and retrieval fees, to be vexatious. However, I do not believe that this is such a case.
This is not a case where, for example, the applicant was refused access to certain information on a matter that has been finalised. Rather, the two requests at issue sought access to a type of information held by the Department that is collated on a regular basis. The Department has accepted that at least some of that information was suitable for release, namely the monthly vessel logs and the ferry passenger numbers. I see no reason, therefore, why it should not be prepared to release such information on a regular basis.
The applicant readily accepts that he submitted smaller requests to avoid having to pay search and retrieval fees. As I have outlined above, he argued that to ask for quarterly data as opposed to paying fees is not unreasonable. Given that the smaller requests combined covered only three quarters, I agree, although I might have arrived at a different conclusion had a very significant period of time been involved.
It is worth noting that if the Department accepts that a right of access exists to such information as it decided to release in this case, there is nothing to stop it from publishing the information regularly, thereby avoiding the need to process FOI requests for same. Indeed, greater proactive publication of information on matters of general interest is a significant tool in managing the number of FOI requests made on such matters. It might also be open to the Department to come to an arrangement with the applicant for the phased release of such information outside of the FOI process.
In the circumstances, I find that the Department was not justified in deeming the requests to be vexatious on the ground that the applicant submitted smaller, separate requests for the same information in order to avoid having to pay search and retrieval fees.
Pattern of Conduct
As outlined above, 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.
During the course of the review, the Department drew the attention of this Office to the applicant’s overall usage of the FOI Act and noted that all of his requests are concerned with information on ferries. It also argued that he was making the requests in bad faith and to burden the system.
I am not persuaded that any of the factors I have identified above as relevant in assessing whether a request may be categorised as frivolous or vexatious arise in this case. I accept that all six requests relate to ferries and that they were made within a relatively short space of time. However, this of itself does not mean that they are vexatious. There are clearly two separate streams of information captured by the requests, namely (i) quarterly data relating to Contractor A and (ii) the Department’s email correspondence with Contractor B.
I have some concerns about the nature of the applicant’s requests relating to Contractor B. The Department refused request 0041 on the ground that no relevant records exist or could be found. While the applicant availed of the internal review process in that case, he did not apply to this Office for a review of the Department’s decision. Instead, he proceeded to make further very similar overlapping requests (0065 and 0076).
The Department’s frustration at having to deal with those further requests is, in my view, understandable. Nevertheless, it is important to recall that those requests are not the subject of this review. The requests that are the subject of this review relate to Contractor A. The question I must consider, therefore, is whether they are sufficiently connected to the other requests to be deemed to have been made in bad faith or to burden the system, or to be deemed to form part of a pattern of conduct that amounts to an abuse of process or an abuse of the right of access.
I am satisfied that the requests at issue were not made in bad faith or with a view to burdening the system. Rather they were made with a view to obtaining information which the Department accepts should be released, at least in part, without the need to pay search and retrieval fees.
On the question of whether the requests are sufficiently connected to the other requests to be deemed to form part of a pattern of conduct that amounts to an abuse of process or an abuse of the right of access, I do not believe that they are. In my view, the requests were made by the applicant for the purpose of exercising his right of access and his conduct in relation to his requests for information relating to Contactor B are not sufficiently connected to suggest that they form part of an overall pattern of conduct that amounts to such abuse.
I would note, however, that the applicant’s later requests relating to Contractor A included requests for information to which the Department had refused access in request 0036, namely the quarterly passenger revenue. If the applicant was dissatisfied with that refusal, the appropriate course of action would have been for him to avail of the internal and external review rights as provided for in the Act. Repeated requests for information to which access has been refused run the risk of being deemed vexatious. Nevertheless, I find, on balance, that the Department was not justified in deeming the requests to be vexatious on the ground that they form part of a pattern of conduct that amounts to an abuse of process or an abuse of the right of access.
Manifestly Unreasonable Requests
While the Department drew the attention of this Office to the applicant’s pattern of requests, it did not specifically argue that the requests at issue form part of a pattern of manifestly unreasonable requests. For the sake of completeness, however, I will address the matter.
The number of requests made is not, in my view, excessive by reasonable standards. Neither are the requests at issue excessively broad or unusually detailed. I am also satisfied that they have not been made for their nuisance value and that they were not made without reasonable or legitimate grounds. In the circumstances, notwithstanding the concerns I have expressed above about the applicant making repeated requests for access to information to which access has previously been refused, I am satisfied that the requests at issue do not form part of a pattern of manifestly unreasonable requests.
In conclusion, therefore, I find that in the particular circumstances of this case, the Department was not justified in refusing the requests under section 15(1)(g). Nevertheless, in light of the fact that both requests included, in part, requests for information to which the Department has previously refused access, I do not consider it appropriate to simply direct the release of the information sought.
Instead, I am satisfied that the appropriate course of action is to annul the Department’s decision, to direct it conduct a fresh decision making process in respect of both requests, and to inform the applicant of the outcome in accordance with the requirements of the FOI Act. Those further decisions will be subject to the usual rights of internal review as well as external review by this Office.
Finally, it is important to note that a finding by this Office that the Department was not justified in refusing the requests in this case does not mean that the Department can never deem subsequent related requests to be vexatious.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Department in this case and I direct it to conduct a fresh decision making process in respect of both of the applicant’s requests.
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.