Case number: OIC-136918-L2Q8Z8

Whether the Defence Forces was justified in refusing, under section 10(7) of the Act, to provide statements of reasons for various matters relating to the applicant’s appraisal on the ground that the application forms part of a pattern of manifestly unreasonable requests

 

12 June 2023

 

Background

On 14 January 2023, the applicant, a member of the Defence Forces, applied to the Defence Forces for a number of statements of reasons regarding a specified performance appraisal. In order to protect the identity of the applicant, I do not consider it appropriate to detail the specifics of the statements sought. It is sufficient to say that he sought reasons for (i) particular comments his supervisor made about him in the appraisal, (ii) why his supervisor waited until 6 months into 2022 before completing the 2021 appraisal, and (iii) why he was not appraised during the reporting period.

In a decision dated 17 February 2023, the Defence Forces refused the applicant’s request for reasons for the comments made on the ground that he did not have a material interest in matters affected by the acts for which reasons were sought, i.e. that section 10(5) of the Act was not satisfied. It provided the applicant with statements of reasons in response to the two remaining acts identified.

On 22 February 2023 the applicant sought an internal review of the decision of the Defence Forces on the ground that he believed he had a material interest in the matters raised as he was subject to an adverse performance appraisal. On 14 March 2023, the Defence Forces issued its internal review decision wherein the internal reviewer noted that statements of reasons had been provided for two acts. He said he agreed with the decision to refuse to provide statements for the comments made on the basis that the applicant did not have a material interest in matters affected by the acts but also decided that section 15(1)(g) of the Act applied. While the Defence Forces erroneously cited section 15(1)(g), it is clear that it intended to refuse the application under section 10(7). On 28 March 2023, the applicant sought a review by this Office of the Defence Forces 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 applicant and the Defence Forces as described above and to the correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

In its submissions to this Office during the review, the Defence Forces clarified that it was relying on section 10(7) of the FOI Act as the basis on which it had decided to refuse to provide the statements of reasons sought. The Investigating Officer wrote to the applicant and put him on notice of the Defence Forces’ revised position.

Accordingly, this review is concerned solely with whether the Defence Forces was justified, pursuant to section 10(7) of the Act, in its decision to refuse to provide statements of reasons sought by the applicant for comments made by his supervisor on his 2021 performance appraisal.

Analysis and Findings

Section 10(1) of the Act provides that a person who is affected by an act of an FOI body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act. Under subsection (13), an act of a body is deemed to include a decision of the body.

Section 10(7) provides that “a head to whom a request is made under this section may refuse to grant the request if the request is, in the opinion of the head, frivolous or vexatious, or forms part of a pattern of manifestly unreasonable requests from the same requester or from different requesters who, in the opinion of the head, appear to have made the requests acting in concert”.

Generally speaking, a request is considered by this Office to be frivolous or vexatious where it has 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. We have previously set out a number of non-exhaustive factors that we consider relevant in assessing whether a request may be categorised as frivolous or vexatious and regard those non-exhaustive factors as equally relevant in determining whether or not there is evidence of a pattern of manifestly unreasonable requests. The factors include, but are not limited to;

 

1. The actual number of requests filed: are they considered excessive by reasonable standards?

2. The nature and scope of the requests: for example, are they excessively broad and varied in scope or unusually detailed? Alternatively, are the requests repetitive in character or are they used to revisit an issue which has previously been addressed?

3. The purpose of the requests: for example, (a) have they been submitted for their "nuisance" value, (b) are they made without reasonable or legitimate grounds, and/or (c) are they intended to accomplish some objective unrelated to the access process?

4. The sequencing of the requests: does the volume of requests or appeals increase following the initiation of court proceedings or the institution or the occurrence of some other related event?

5. The intent of the requester: is the requester's aim to harass government or to break or burden the system?

It is not necessary for all of the above factors to be present before a request can be refused under section 10(7), nor is the list exhaustive. The outcome or cumulative effect of the requests is also a relevant consideration. Moreover, it is also appropriate to consider the requests concerned in the context of other requests made to the FOI body and in the context of the requester's other dealings with the FOI body concerned. On that latter point, I note that in her judgment in Kelly v the Information Commissioner [2014] 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. This view was endorsed by the Court of Appeal in Grange v the Information Commissioner [2022] IECA 153. In that case, the Court of Appeal found that this Office was “entitled to take into account the history of dealings between the appellant and the Department and the previous FOI requests insofar as they were relevant to the appellant’s grievances, as well as the context of the FOI request in question”.

When considering whether a request forms part of a pattern of manifestly unreasonable requests, it seems to me that the question I must consider is not whether each request, of itself, is manifestly unreasonable. Rather, I believe that the appropriate approach to take is to consider whether the requests, when considered together, form a pattern of manifestly unreasonable requests such that any request forming part of that pattern may be refused under section 10(7).

It is also important to note that 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 10(7). In the aforementioned High Court proceedings, 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".

The Defence Forces’ Submissions By way of background, the Defence Forces explained that an AF667 is an Annual Confidential Report, consisting of seven parts completed annually for the preceding 12 months, and designed to assess military performance, assist in career development, and identify NCO’s suitable for promotion. It said that an AF667b is used generally to record paradings and commendations and is retained on the Unit Personnel File for future reference. It said that the applicant’s reporting officer completed AF667b on 3 June 2022. It said that his unit completed an AF667 for 2021 taking into account the narrative of AF667b which the applicant signed at part 5 with his observations. It explained that part 5 of the AF667 allows for ‘representations/observations’ that are seen by the higher authority prior to final completion of the record and it being filed on a personnel file.

The Defence Forces said the applicant has made 71 FOI requests from 2020 to date, which vary in content. It said a number of requests relate to redress of wrongs, performance appraisals, applications for career courses and medical records. It said that he also made a number of requests for statements of reasons regarding a variety of decisions made by his managers, supervisors or specific medical professionals. In relation to the application for reasons that is the subject of this review, the Defence Forces said that the applicant has made five FOI requests regarding his annual appraisal for 2021. It said these five requests include two request for access to records regarding the AF667b and three requests for statement of reasons on aspects of his AF667.

The Defence Forces submitted that the “general theme” of the applicant’s requests indicated that the applicant is using FOI to challenge administrative decisions made by the Defence Forces in pursuit of his industrial relations and/or human resources grievances. It said it is of the view that this application under review forms part of a pattern of conduct that amounts to an abuse of the right of access and therefore it is relying upon section 10(7) of the FOI Act to refuse the request.

The applicant’s submissions

The applicant said the information sought by him forms part of a case which is due to be heard by the Workplace Relations Commission. He said he required the requested information as evidence in this case. He said he also had “serious concerns that the Defence Forces would change” the grounds for refusal at this late stage in the appeals process. He said that he would not have to use the FOI Act if the Defence Forces “stopped bullying” and penalising him for being a whistle-blower.

Analysis

In previous case OIC-117357 involving the applicant and the Defence Forces, I informed the applicant that I had considered discontinuing that review under section 22(9)(a)(i) but I ultimately issued a decision affirming the decision of the Defence Forces on the basis that it had provided an adequate statement of reasons to the applicant regarding his sick leave.

I also previously discontinued an application for review made by the applicant in OIC-133064 under section 22(9)(a)(i). In that review, I considered the application to which the review related to form part of a pattern of conduct that amounts to an abuse of the right of access. In that case, the applicant had sought a statement of reasons relating to circumstances connected to the completion of his AF667b.

The refusal of a request under section 10(7) is not something that should be undertaken lightly. As its Long Title states, the purpose of the Act is to enable members of the public to obtain access, to the greatest extent possible, consistent with the public interest and the right to privacy, to information in possession of public bodies. The Act demands that FOI bodies meet very high standards in dealing with requests. They are required to go through the rigorous processing requirements of the Act. However, this Office takes the view that the legislation assumes reasonable behaviour on the part of requesters.

It seems to me that this request forms part of a general theme which suggests that the applicant is using FOI to challenge administrative decisions made by the Defence Forces in pursuit of his industrial relations grievances. I consider the level of his usage of FOI for matters related to his performance to be unreasonably high. I also consider that his use of section 10 is more concerned with challenging decisions, as opposed to comprising genuine efforts to obtain reasons for actions taken that affect him. Indeed, I note in his original application for statements of reasons, he sought to challenge or undermine the comments made by his superior based on his own assessment of his performance or the related circumstances.

In conclusion, I am satisfied that the application for a statement of reasons that is the subject of this review forms part of a pattern of conduct that amounts to an abuse of the right of access. I find, therefore that the Defence Forces was justified in refusing, pursuant to section 10(7) of the Ac, to provide the statements of reasons sought, on the ground that the application forms part of a pattern of manifestly unreasonable requests.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Defence Forces, to effuse to provide the statements of reasons sought, pursuant to section 10(7) of the FOI Act.

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.

 

Stephen Rafferty
Senior Investigator