Case number: OIC-67300-C6X1Z9
12 April 2021
References to the applicant in this decision also refer to a company of which I understand he is a director and a firm of solicitors that the applicant confirms as representing him and/or the company.
By way of background, Bus Éireann (BE) operates the School Transport Scheme (the Scheme) on behalf of the Minister for Education and Skills. The applicant took a judicial review (JR) against the Minister in 2012 in relation to the operation of the Scheme. Although that litigation has concluded, separate but related legal proceedings have been taken. A complaint was also made to the European Commission regarding the Scheme’s compatibility with State Aid rules, which found that the system needed to be reformed.
The applicant’s FOI request to the Department of 22 January 2020 sought access to all records held by BE, showing the exact date and time that a named Senior Counsel was first instructed by BE in relation to the JR, and also any record showing that an unnamed solicitor acting for BE knew about the JR concerned. The Department’s decision dated 19 February 2020 refused the request under section 15(1)(g) of the FOI Act on the basis that it was vexatious. The applicant sought an internal review on 21 February 2020. The Department’s internal review decision of 13 March 2020 affirmed its decision on the request. On 16 March 2020, the applicant applied to this Office for a review of the Department’s decision. He subsequently confirmed that this Office may deal with his solicitors in relation to this review. During the review, the Department also argued that the request was part of a pattern of manifestly unreasonable requests.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. Delays arose because the applicant’s solicitor was not in a position to respond to correspondence from this Office because of the Covid-19 crisis. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the Department and the applicant. I have also had regard to the provisions of the FOI Act.
As set out above, the Department has not made a decision regarding whether any relevant records that may exist are held by it for the purposes of the FOI Act, or are exempt under the Act’s substantive exemption provisions. This review will therefore not consider whether the Department should release records related to the request. This is because this Office is not a first instance decision maker on such matters and my decision will not refer to the applicant’s arguments in that regard.
Accordingly, the scope of this review is confined to whether the Department’s refusal of the applicant’s request was justified under the provisions of section 15(1)(g) of the FOI Act.
Exchanging of submissions
At the outset, I will address the applicant’s argument that he is entitled to see the Department’s submission in this case. He quotes from an unidentified judgment regarding the Secretary of State for Defence’s duties of disclosure. The applicant was invited to elaborate on his submission in this regard, but he did not do so.
The applicant also refers to the “judgment of the Supreme Court May [2019 IRSC 45] AP v Minister for Justice and Equality”. The judgment with the above neutral citation is concerned with a case taken by the Director of Public Prosecutions. The Investigator asked the applicant if he intended to refer to the case with the neutral citation [2019 IRSC 47], which concerns the level of information provided to a person whose application for naturalisation had been refused. The applicant says that the AP judgment means that a body making judicial determinations or which is partly judicial in character must fully disclose all determinative evidence. He says that the presumption lies in his favour.
As a general rule, it is this Office’s policy that submissions are not usually exchanged between parties to a review but the parties should be notified of material issues arising for consideration. Material issues include matters such as applicable exemptions not previously raised, pertinent search details not previously disclosed to the applicant, and new court judgments, which may have a bearing on the outcome of the review. Reviews undertaken by this Officer under the FOI Act are inquisitorial, as opposed to adversarial, in nature. This Office’s Investigator wrote to the applicant on 29 April 2020 to put him on notice of relevant material issues, including a summary of the particular requests that the Department considers to form a pattern of manifestly unreasonable requests. I have considered the applicant’s response to that letter along with his initial submission to this Office, and all other correspondence with this Office.
Under section 45(6) of the FOI Act, the Commissioner has discretion to adopt such procedures as are appropriate in all the circumstances of a case. In all circumstances, this Office aims to ensure that the approach adopted is fair, and seen to be fair, to all the parties concerned.
The High Court has previously considered the fairness of this Office's procedures in the context of this Office's treatment of submissions. In The National Maternity Hospital v the Information Commissioner  3 IR 643, Quirke J. stated as follows:
"I know of no principle of natural or constitutional law or justice which confers upon parties who make submissions to a decision-making body the right to respond to the submissions made by every other party who participates in the process. The review undertaken by the Commissioner was a statutory process which expressly envisaged and permitted the adoption of informal procedures."
I am satisfied that all material points raised by the Department in this case have been communicated to the applicant.
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:
While section 13(4) of the FOI Act generally requires public bodies to disregard any reasons for the request, a requester's motive for making an FOI request is relevant when considering the application of section 15(1)(g).
Having regard to the nature and scope of this request, the Department considers it to be part of a pattern of manifestly unreasonable requests from the applicant, the firm of solicitors and the applicant’s company. It says that over 40 FOI requests have been made between 2011 and 2015 in relation to what the applicant describes as BE’s profit for the operation of the Scheme (the profit issue) on behalf of the Department. In particular, the Department says that the applicant and the two other parties have made 13 FOI requests to the Department since September 2019, some of which are repetitive and others of which are unreasonable.
The Department says that the applicant has sent it “substantial correspondence through various other routes” in relation to the matter of BE’s alleged profit from its operation of the Scheme. It says that while it has made every effort to explain relevant facts and give all information that was requested, the applicant has reverted several times seeking the same information. It notes that the applicant has on a number of occasions claimed that the Department is withholding information and that its officials are “subject to corruption.” The Department says that this is not the case and that it has made every effort to provide information to the applicant and has treated each FOI request on its own merits.
The applicant says that the present request is narrow in scope. He says that the records will show whether he is correct in claiming that misleading information was given to the Court about the presence of a BE legal representative in the courtroom in earlier litigation. He indicates this is an issue in the ongoing litigation and that he is entitled to the records as evidence. He says that this Office should obtain the relevant records and determine from their contents whether the Court was misled in this regard. He says that if the records show that the court was misled, then such records must be made available. He says that the FOI Act must be given a Constitutional interpretation and using section 15(1)(g) must not be in breach of the Constitutional right to a fair trial.
The applicant says that he made his other requests because the Department has either given him records that do not contain the information he is looking for or because it has refused them, including under section 15(1)(g) of the FOI Act. In particular, he takes issue with how the Department interprets the term “net surplus”/ “net surplus/profit”. He says that incorrect details were also put to the Court in the JR about the profit issue and that his requests sought records intended to prove this. He says that he worded his requests differently to follow a trail of enquiry, to give focus to the requests and to be helpful to the decision maker rather than to be repetitive. He says that he also made clear the sort of records that he was not seeking.
He says that Ireland has agreed to conform to public procurement laws to avoid infringement proceedings arising from his complaint to the European Commission. He sees this as an admission that the case advanced by the Department in the JR was wrong and that the High Court’s judgment was wrong. He says that this Office should obtain records relevant to the profit issue and that they will show that he was not provided with the information he sought in this regard. He says that various inferences should be made, including that the Department is denying his right to due process. He says that the Department is refusing to grant his requests for records relating to the profit issue and is abusing the FOI process by relying on section 15(1)(g) to protect its own interests, including in relation to the outcome of the complaint to the Commission and the further litigation. He also refers to a Parliamentary Question regarding the matter of profit that he says was not answered. He says that the Minister’s failure to answer it is relevant to my decision in this case and asks me to “find out the amount of profit and determine has the Minister abused the FOI Act” by relying on section 15(1)(g).
He also says that changes made to the fee charging regime in the 2014 FOI Act mean that it is cheaper for applicants to make FOI requests i.e. that there is no charge to the requester if processing the request takes under five hours. He says that this encourages more focused requests that result in less work for FOI bodies and fewer records to be considered. However, he says that this encourages more individual requests and therefore that the changes in the charging regime are relevant to my consideration of whether section 15(1)(g) applies in this case.
In the first instance, I would like to point out that I have no remit to examine whether information put before the Court was correct, or to assess the merits of any party’s position in that litigation or of the judgment so given. Neither have I a role in determining if the applicant’s contentions about the profit issue or other matters are supported by the content of any records. As stated above, this review is concerned with whether or not the Department’s application of section 15(1)(g) of the FOI Act is justified, and so the content of the records is not at issue. In addition, the responses to any Parliamentary Questions regarding the profit issue or other matters are not relevant to my consideration of whether section 15(1)(g) applies to the request.
The applicant believes that his Constitutional rights require his FOI request to be granted and that the Department is encroaching upon those rights by its reliance on section 15(1)(g) of the FOI Act. My role is to assess whether or not the Department was justified in its application of the FOI Act, which is an act of the Oireachtas that, unless proven to the contrary, is considered to have been enacted in accordance with the Constitution. Further, I do not consider it to be relevant to this Office’s review whether the applicant might be entitled to obtain the requested records under Court procedures such as discovery or otherwise outside of the FOI Act. For the avoidance of doubt, this review does not require me to examine the merits of the Department’s decisions on other requests made by the applicant.
The provisions in the FOI Act concerning fees operate separately from those of section 15(1)(g). While the FOI Act gives requesters certain rights and imposes various requirements on FOI bodies, it also envisages that requesters behave reasonably when making requests. This has not been altered by the changes to the fee regime arising from the 2014 Act.
Turning to the Department’s application of section 15(1)(g) in this case, I note that it refers to parties working in concert. In this case, the parties in question are the applicant, the company and the firm of solicitors referred to at the start of this decision. While I understand the reasons why the Department took this into consideration, it is my view that it is not unreasonable for these parties to make FOI requests in relation to matters concerning their shared interests.
I have considered all of the submissions in order to assess whether there exists a pattern of unreasonable conduct on the part of the applicant, whereby this request would be considered frivolous or vexatious. Six of the 13 requests referred to by the Department were made between September and November 2019. The other seven were made in one week in January 2020. As set out above, this Office deems it appropriate to consider the request 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 Kelly v the Information Commissioner  IEHC 479, O’Malley, J. found that this Office was not confined to considering the specific request and that it was entitled to consider the wider context in which the request was made. It is my view that the context of the other requests made by the applicant is pertinent to my review of the Department’s decision on this request.
The request in this case is identical to another request made on the same day in January 2020, which the Department also refused under section 15(1)(g). The other 11 requests have multiple parts. One, made in January 2020, has 12 parts. Some parts of the requests are unusually detailed e.g. seeking records identifying who had prepared a reply to a Parliamentary Question and verifying that a particular Minister made the reply. Some of the requests require particular information to be broken down in specific ways and could be taken as requesting the Department to create records in the desired format. The timeframes of some parts of the requests cover, for instance, 1975-1986, 1986-2018 and 2000-2018. Any reasonable person would see these timeframes as excessively broad, especially in the context where the FOI Act provides for a right of access to records created before April 1998 only in two limited circumstances. Most of the requests fully or partially concern the profit issue. One request sought similar but not identical records to another request. While the applicant says that his requests also make clear the sort of records that he is not seeking, it seems to me that only one part of one of the 11 requests contained such details.
I agree with the Investigator’s view that any reasonable person could see the applicant’s requests as excessively burdensome and amount to unreasonable conduct. As noted above, most of the requests fully or partially concern the profit issue. The applicant describes what he sees as genuine reasons for making such requests. However, they clearly have their basis in his disagreement with how the Department and BE interpret the term “profit”. The applicant says that the “follow up … requests would not be necessary if the information on [BE’s] profit was given in the first place.” The requests thus seem to me to represent attempts to revisit the matters of the JR and/or the arrangements for providing school transport services and to accomplish objectives unrelated to the access process. They do not appear to be a legitimate and reasonable request for access to records
The present request is somewhat unusual in focus but arguably seeks a reasonably precise range of records, as noted by the applicant. Although the applicant made two identical requests on the one day and has not explained why this happened, is not apparent to me that the applicant has sought these particular records under FOI before. A request for records that may be relevant to current litigation might be seen as a legitimate reason for that request. However, having considered the matter very carefully, this FOI request seems to me to be a further element of the applicant’s use of FOI to challenge the Department’s and BE’s handling of legal proceedings as well the operation of the Scheme and the profit issue. I accept that this request forms part of a pattern of unreasonable conduct toward the Department amounting to an abuse of process or an abuse of the right of access. In the circumstances and given the overlap between the various limbs of section 15(1)(g), I also consider that it is vexatious. I find that the Department’s refusal of the request is justified under section 15(1)(g) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s refusal of the request under section 15(1)(g).
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.