Whether DCU was justified in its decision to refuse the applicant's request for records relating to the absence of DCU staff members from a particular room in DCU on an open day under section 15(1)(g) of the FOI Act
13 August 2019
According to the applicant, he visited DCU on 17 November 2018 during one of its open days but there was no one available in the designated room to discuss a multimedia course as had been advertised in the open day brochure. He submitted a complaint to DCU on the matter and following a number of exchanges of e-mail correspondence, he submitted the following FOI request on 24 January 2019:
“…I request all documents created before and after the 17th of November 2018 related to the staff member that was supposed to be in room [specified] on the 17th November between 10 and 2 as advertised in the Open Day brochure”
On 20 February 2019 DCU issued a decision in which it refused the request under section 15(1)(g) on the ground that it deemed the request to be frivolous. The applicant sought an internal review of that decision on the same day. On 8 April 2019 DCU issued its internal review decision in which it affirmed its original decision, following which the applicant sought a review by this Office of that 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 DCU and the applicant in relation to his FOI request. I have also had regard to the communications between this Office and both the applicant and DCU during the review and to the contents of certain email records relating to the applicant’s engagements with DCU that DCU identified as relevant to the review.
Scope of the Review
This review is solely concerned with whether DCU was justified in its decision to refuse the applicant's request under section 15(1)(g) of the FOI Act on the grounds that the request was frivolous.
Analysis and Findings
Section 15(1)(g) of the FOI Act provides for the refusal of a request that is considered to be frivolous or vexatious, or to form part of a pattern of manifestly unreasonable requests. While the section identifies three specific characteristics which may lead to a decision to refuse a request, 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.
This Office considers that a request may be regarded as frivolous or vexatious where, among other things, it has been made in bad faith or it forms part of a pattern of conduct that amounts to an abuse of process or an abuse of the right of access.
Where a requester's pattern of behaviour involves an abuse of process, the fact that he or she is unwilling to co-operate with the FOI body may be evidence of bad faith on the part of the requester. A request could also be made in bad faith without any pattern of behaviour being present.
This Office is satisfied that it is entitled, by virtue of section 13(4) of the FOI Act, to take into account the motive of a requester when considering whether a request is frivolous or vexatious. In the case of Kelly v the Information Commissioner  IEHC 479, 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".
It is also noteworthy that in the same judgment, 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.
The applicant stated that DCU's published brochure advertising the Open Days stated that there would be an opportunity for visitors to talk to staff and students of the School of Communications in relation to the multimedia course in the specified room on Saturday 17 November 2018 between 10am and 2pm. According to the applicant, there was nobody in the room when he attended on the day and he alleges that while he spoke with the Head of the School of Communication, he never got to speak with the staff member who was there to speak about the multimedia course and that he was never offered an explanation as to why there was nobody present to speak about the course.
In his application for review, the applicant stated he had asked several people in DCU why there was no staff member there to represent the multimedia course but had never gotten an explanation and therefore had to “resort to FOI”. He stated he wanted an explanation as to why there was no one present.
On the specific matter of the open day, DCU stated in its submissions that staff availability during open days is variable depending on teaching and other commitments and that the aim is to ensure that there is a sufficient number of informed staff and students available to answer queries from prospective students, parents, and careers guidance staff. It stated that the School of Communications chose to make available academic staff to address queries in a number of rooms adjacent to where presentations on the Communications programmes were taking place, that faculty staff and students were also available to address queries in the exhibition area, and that the School also provided guided tours of the Media facilities including the TV and radio studios.
It argued that the applicant’s request was made in bad faith based on its view that the FOI Act is not the appropriate mechanism for individuals to purse matters which have been dealt with already in previous correspondence. It argued that to engage in an FOI request when the applicant knowingly has the information in his possession already is a frivolous use of the FOI Act. It submitted this matter has taken up a continued and very substantial allocation of time of officials with the applicant posing the same or similar questions to a wide group of DCU officials. It argued that this in and of itself is vexatious.
DCU submitted that while the applicant has only one FOI request on this topic, there is a pattern of frivolous and vexatious behaviour that has culminated in an FOI request. In support of its position, DCU supplied this Office with copies of a number of emails exchanges between the applicant and various DCU officials on a number of matters relating to the multimedia course
which it said demonstrated that it had adequately dealt with the applicant's issues and the lengths various officials went to answer the applicant's various queries.
In essence, DCU’s argument is that it went to great lengths in an effort to address the applicant’s numerous, repeated, queries to various members of staff. On the matter of the subject of his FOI request, DCU stated that on the same day that he attended DCU (17 November 2018), the applicant emailed the programme Chair of the multimedia course wherein he stated that there did not appear to be anyone present to specifically talk about the course.
Two days later the Chair responded wherein he explained that the talk the applicant attended covered broad details of the three undergraduate programmes of the School with staff and students from each one available afterwards to speak to for any course-specific questions. He stated that the former Chair of the programme was in attendance on the day in question along with a staff member who teaches on the programme and two current students. He stated that it was odd that none were available at the time the applicant visited as they spoke with several other people, some of whom he was following up with. He asked the applicant if he had any questions that he could help with by email.
In response the applicant submitted an email query regarding graduate survey results. Further email exchanges on matters related to that topic followed and on 21 December the applicant sent a further email wherein he referred to the absence of staff to represent the multimedia course. He sent further related emails on that matter based on his view that he had not received a specific answer to his question, culminating in his FOI request. In essence, DCU considers that it has more than adequately addressed all of his previous queries.
The FOI Act affords important access rights to records held by FOI bodies. Indeed, in performing any functions under the Act, FOI bodies must have regard to
• the need to achieve greater openness in their activities and to promote adherence by them, to the principle of transparency in government and public affairs,
• the need to strengthen the accountability and improve the quality of decision making of FOI bodies, and
• the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies.
The Act also requires FOI bodies give reasonable assistance to a person who is seeking a record under the Act and it provides in great detail how requests should be dealt with, imposing strict
requirements on FOI bodies to redirect requests to the appropriate body, to deal with requests within a strict deadline, to provide for a review by a more senior official of a request which has been refused, to explain the reasons for its decisions and to inform requesters of their rights of appeal.
In short, the Act demands that public bodies meet very high standards in dealing with requests. This as it should be; but the corollary is that the legislation assumes reasonable behaviour on the part of requesters. This Office takes the view that certain patterns of conduct by requesters and/or attempts by requesters to circumvent the provisions of the Act can constitute an abuse of the process of making an FOI request and that such requests may be refused on the grounds that they are frivolous or vexatious.
Among other things, section 15(1)(g) allows FOI bodies to avoid having to allocate scarce resources to processing requests that are frivolous or vexatious. Having considered the particular subject matter of the request and the nature of the applicant’s engagements with DCU on the matter, I consider that the applicant’s request was made in bad faith. I do not accept that the request comprises a genuine attempt to avail of the important right of access to records held by DCU.
Rather, the applicant appears to be attempting to use FOI to compel DCU to address his particular complaint concerning the alleged absence of specific staff on the open day, even though the programme Chair has already explained the arrangements that were made on the day and notwithstanding that he received several offers of assistance to address any queries he may have had on the day.
In the circumstances, I am satisfied that DCU was justified its refusal of the applicant’s request under section 15 (1)(g) on the ground that the request was frivolous.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of DCU to refuse the applicant's request for relevant records under section 15 (1)(g) on the grounds that the request was frivolous.
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.