Case number: 160477 & 170109
The description that I can give of the circumstances of these cases is very limited since disclosure of detail could identify the applicant and disclose personal information about him.
Case No 160477
On 12 September 2016, the applicant made an FOI request to the Body for access to certain communications between any representative of the Body's HR unit and a named HR consultant. He said that he sought such communications that concerned either himself, or the consultant's appointment as an independent investigator of complaints made about him or the consultant's receipt and consideration of the applicant's response to his draft report. He also sought any communication relating to the delivery of the consultant's final report to his solicitor.
Although the applicant made his request in his own right, the Body's solicitors sent a decision to his solicitors. Dated 12 October 2016, the decision referred to a Settlement Agreement (the Agreement) that had been entered into between the applicant and the Body on a date prior to the FOI request. The decision said that, given the Agreement and the nature of the dispute that led to it, the Body considered the request to be frivolous, vexatious and unreasonable in nature, and was refusing to grant it under section 15(1)(g) of the FOI Act. On 18 October 2016, the applicant's now former solicitors asked the Body to correspond with the applicant directly. On the same date, the applicant sought an internal review on the basis that he had not received a decision on his request within the time frame set out in the FOI Act.
The Body's letter to the applicant of 26 October 2016 again relied on section 15(1)(g) for the reasons summarised above. On 1 November 2016, the applicant sought a review by this Office of the Body's decision.
Case No 170109
On 18 December 2016, the applicant made an FOI request to the Body, for access to communications between any representative of the Body's HR unit and named persons, regarding the attendance of those persons at certain meetings in relation to complaints they had made about him. The Body's decision of 17 January 2017 refused the request under section 15(1)(g), on the same basis as outlined above.
The applicant sought an internal review on 8 February 2017. The Body's internal review decision of 1 March 2017 affirmed its refusal of the request under section 15(1)(g). On 3 March 2017, the applicant sought a review by this Office of the Body's decision.
I have now decided to conclude both reviews by way of a composite, formal, binding decision. In carrying out my reviews, I have had regard to the above exchanges; and to correspondence between this Office, the Body and the applicant. I have had regard also to the Agreement and to the provisions of the FOI Act.
The applicant did not pay this Office the statutory fee required in any case involving the personal information of persons other than the requester. The applicant is aware that this review is, accordingly, confined to the Body's refusal to grant his requests in so far as the records contain personal information solely only about him. However, the underlying issue is the same - whether the Body has justified its refusal to grant access to the records under section 15(1)(g) of the FOI Act.
My review is confined to the question of whether the Body has justified its refusal of the requests and will not deal with the Body's handling of FOI requests generally.
Section 15(1)(g) is a discretionary ground for refusing access to a record. It applies 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 or from different requesters whom the body considers to have made the requests acting in concert.
This Office has found in other cases 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. A number of non-exhaustive factors are 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:
I have summarised the arguments made by the applicant in both cases. He says he wants access to the records "in the interest of highlighting deficient administration of HR processes as applied by [the Body] and to "bring transparency to [the Body's] implementation of HR procedures." He maintains that he was subject to investigation and disciplinary procedures by the Body that he considers to fall short of natural justice and the Body's own standards. He says that he was not given "clear information" on the appointment of the HR consultant or on communications with the complainants, whose complaints he considers to be malicious. He says that "if all information exchanges are complete and transparent then [the Body] should have no difficulty in providing such information." He also says that the records sought amount to only a "handful of letters and/or emails" that should take the Body "a maximum of 20 minutes to retrieve, print and send". Finally, he says he believes that the Body's solicitors "leaned on [his former solicitor] to achieve her recommendation ... to accept a sever and settle agreement ... through 'off the record' communication."
The Body considers the requests to be frivolous and vexatious. It says that various allegations were made about the applicant by the parties named in his request of 18 December 2016. It says it commissioned a fact-finding investigation by an independent third party (i.e. the consultant named in the FOI request of 12 September 2016), which upheld the complaints. The Body says that a disciplinary hearing was scheduled, at which the applicant had legal representation, but that the applicant's solicitors entered into discussions with the Body's solicitors before the disciplinary committee issued its determination. It says that these discussions resulted into the Agreement, which it describes as a "full and final settlement of all claims and rights of action in connection with [certain matters]", being entered into between applicant and the Body. It says that the Agreement is legally binding, and that granting the requests would undermine the Agreement's terms, which were intended to bring to an end all disputes between the parties. Its position is that it is clear from the nature of the requests that the applicant is seeking to revisit or reopen the matters that he had settled with the Body, and seeking to accomplish a motive unrelated to the FOI process.
In addition, the Body says that the applicant made FOI requests in July, September, October, and December 2016. I note that it says it did not consider the applicant's July request to be directly related to the Agreement, and that this request was "responded to in full". The Body says that the three other requests related directly to the circumstances that resulted in the Agreement. Finally, it says that the October and December requests sought identical records, and that the December request was made after the Body had issued its decision, on 26 October 2016, on the October request.
This Office provided the applicant with the details set out above and invited his comments. No response was received.
This Office's role does not extend to examining, or making any findings on, whether the Agreement is valid, which is a matter for the Courts. However, the fact that the applicant and the Body negotiated and entered into the Agreement is, in my view, strong evidence of a reasonable belief on the Body's part that the matters that led to the Agreement had been concluded.
Section 13(4) of the FOI Act generally requires public bodies to disregard any reasons for the request. However, a requester's motive for making an FOI request is relevant when considering the application of section 15(1)(g). In the circumstances of this case, I consider that the purpose of the request is a key factor in relation to whether it has been made in bad faith and whether it amounts to an abuse of process.
I have taken the various arguments made by the applicant as saying, essentially, that he is trying to ensure that the Body can be held accountable for its actions, particularly its treatment of him. I accept that ensuring accountability can be seen as a legitimate reason for seeking access to records. One of the purposes of the FOI Act is ensuring the openness and accountability of FOI bodies.
However, the applicant has not disputed the Body's account of the matters leading to the conclusion of the Agreement. Neither has he disputed its position that his requests are seeking to revisit the matters the subject of, and which were apparently concluded on foot of, the Agreement. I accept the Body's position that the applicant is using FOI to try to accomplish an objective unrelated to the access process.
However, I am not prepared to draw any adverse inferences from the fact that the applicant's 18 December 2016 request was identical to that made in October 2016. The applicant had a conversation with a staff member of this Office on 1 December 2016, concerning his application for review in Case No 160505 arising from the October 2016 request. In summary, the Body's letter of 26 October 2016 dealt with both the September (Case No 160477) and October 2016 requests. This is not clear from the letter, other than the fact that it refers to "requests". It seems that the applicant did not realise that he had to seek an internal review of the decision on the October request before he could apply for a review by the Commissioner in that case.
This Office told him that one of the options open to him was to make a fresh identical request to the Body and undergo the FOI process afresh. The applicant withdrew Case No 160505 on 2 December 2016. It seems quite possible to me that the applicant was acting in good faith when he made the fresh FOI request of 18 December 2016.
The Body has not argued that the requests are excessively broad or unusually detailed in their scope or that the applicant's aim is to harass the public body. I will not consider these factors further.
The applicant's submissions can be seen as referring to a genuine reason for making the requests (i.e. ensuring the Body's accountability). However, he has not disputed the Body's position that he is seeking to revisit the matters that resulted in the Agreement, and to accomplish an objective unrelated to the access process. This is sufficient for me to decide that the Body has justified its refusal of the applicant's requests of 12 September and 18 December 2016 on the basis that they are frivolous or vexatious and ones to which section 15(1)(g) applies.
The Body's Description of Appeal Rights
The Body's position is that notices of the decisions made by it were caused to be given by the Body's solicitors and that this complied with the requirements of the Act. Nevertheless, I consider that the details given to the applicant in the solicitor's notices regarding his appeal rights were inadequate. The Body should ensure that, in future, it complies with section 13(2) of the FOI Act. Section 13(2) sets out what all decisions "shall specify" and, in particular, section 13(2)(f) sets out what a decision must contain regarding rights of review.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Body's refusal of the applicant's requests of 12 September and 18 December 2016 on the basis that they are frivolous or vexatious and ones to which section 15(1)(g) applies.
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.