Whether the SEC was justified in refusing access to records concerning the drafting and approval of its responses to a newspaper enquiry under section 15(1)(g) of the FOI Act on the ground that the request was frivolous and vexatious or that it formed part of a pattern of manifestly unreasonable requests

29 April 2021

Background

This review has its background in a series of articles and an editorial published in a newspaper in January 2020 about matters relating to the State examinations and assessment processes. The applicant, a former staff member of the SEC, submitted a request to the SEC (reference 15/20) wherein he sought copies of all correspondence between the SEC and the newspaper. The SEC granted the request and released a number of relevant records, including two emails from the SEC to the newspaper dated 13 January 2020 and 16 January 2020 in response to requests the newspaper submitted prior to publishing the articles in question for comment on the issues of standard setting within State Examinations and focused monitoring. It appears the newspaper-�s requests for comment were based on the contents of a draft internal research report it had seen.

On 19 August 2020, the applicant submitted a further request wherein he referenced the two emails in question and sought -�all records relating to the drafting, editing and finalisation of the Press Statements-� and -�all records relating to the approval of the Press Statements for issue-�. The SEC assigned the reference number 19/20 to that request, which is the subject of this review.

On 15 September 2020, the SEC refused the request under section 15(1)(g) of the FOI Act (which provides for the refusal of frivolous or vexatious requests or requests that form part of a pattern of manifestly unreasonable requests) on the ground that the request was revisiting an issue that had been dealt with in a previous request.

Subsequently, the applicant sought to clarify what precise request or requests the SEC believed to have dealt with the issue previously and he was informed that the requests in question were processed under reference numbers 09/19 and 16/20. On 2 October 2020, the applicant sought an internal review of the SEC-�s decision. He argued that the records sought in the request were entirely different to those sought in the two previous requests.

On 27 October 2020, The SEC affirmed its refusal of the request under section 15(1)(g). In doing so, it said that requests 09/19 and 16/20 had dealt with the topic that was the subject of the email of 13 January 2020 and that on foot of request 58/18, he had also been provided with a draft report that was referenced by the newspaper in a request for response and which prompted the responding email of 13 January 2020. It noted that request 58/18 was one of 64 requests the applicant had made to the SEC in 2018. It said the subject matter dealt with in the email of 16 January 2020 had been dealt with previously in request 23/18.

The SEC added that the subject matter of the two emails are both matters of settled policy and procedure within the SEC as was clear from those emails and that the relevant material underpinning the requests for comment from the newspaper that had prompted the email responses had been the subject of previous requests made by the applicant. It said that seeking access to the records of the work involved in formulating and finalising those responses comes within the ambit of section 15(1)(g).

On 28 October 2020, the applicant sought a review by this Office of the SEC-�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 applicant and the SEC as outlined above and to the correspondence between this Office and both parties on the matter.

Scope of Review

This review is concerned solely with whether the SEC was justified in refusing, under section 15(1)(g) of the FOI Act, the applicant-�s request for records relating to the drafting, editing, and finalisation of its email responses to the newspaper.

Analysis and Findings

Section 15(1)(g) provides that an FOI body may refuse to grant a request if it considers that the request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests. The section identifies three characteristics of a request that may lead to a decision to refuse a request; they are that the request is frivolous, is vexatious, or forms part of a pattern of manifestly unreasonable requests.

Any one of the three separate characteristics may, of itself, provide the basis for a refusal of a request. It is not necessary, for example, for the request to be both frivolous -�and-� vexatious. Nevertheless, while they are three separate characteristics, they may also overlap. Therefore, what is frivolous may also be vexatious, and what is frivolous and/or vexatious may form part of a pattern of manifestly unreasonable requests.

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 the FOI process. In considering the application of section 15(1)(g), we may consider the context in which the request was made.  A request may be considered 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 and with our Office. The outcome or cumulative effect of the request is also a relevant consideration.

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:

• the number of requests made - are they considered excessive by reasonable standards?
• the nature and scope of the requests - 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 that has previously been addressed?
• the purpose of the requests, e.g. have they been made for their "nuisance value"; are they made without reasonable or legitimate grounds; and/or are they intended to accomplish some objective unrelated to the access process?
• the sequencing of the requests - does the volume of requests or appeals increase following the initiation of court proceedings by the institution or the occurrence of some other related event?
• the intent of the requester - is the requester's aim to harass the public body or to break or burden the system?

This Office also considers the list of non-exhaustive factors in question to be equally relevant in determining whether or not there is evidence of a pattern of manifestly unreasonable requests.

SEC Submissions

The SEC said it released the two emails at issue on foot of a request the applicant submitted in July 2020 for all records relating to all queries to the SEC from the newspaper during January 2020 (request 15/20). It said it is clear that the request that is the subject of this review (request 19/20) is a follow up to request 15/20. It said the subject matter of the engagement between the SEC and the newspaper has also been the subject of previous FOI requests from the applicant. It said that while the records sought in request 19/20, relating to two specified timelines in January 2020, clearly did not exist when responses were provided to the applicant on foot of previous requests in 2018 and 2019, it considered it necessary to reflect on the subject matter of the previous requests and earlier requests related to the same subject matter.

The SEC explained that the email of 13 January 2020 to the newspaper dealt exclusively with the topic of standard setting in State Examinations. It said its response made clear that the draft SEC research report which underpinned the newspaper-�s query continued to be a work in progress and that no decisions had been made to change either policy or procedures relating to this aspect of the SEC-�s work, nor were any such decisions imminent. It said this was a full and comprehensive response to the newspaper regarding the matter.

The SEC said it had previously dealt with requests on the same subject matter from the applicant, namely 09/19 and 15/20, and that he had also been provided with a copy of the draft report which underpinned the newspaper-�s query in January 2020 on foot of request 58/19.

On the matter of the email of 16 January 2020, it said the query and response dealt exclusively with the topic of focused monitoring. It said the response made clear that such an alleged approach formed no part of its policies or procedures. It said that matter had been dealt with previously in request 23/18.

The SEC said it adopts a firm, consistent and clear approach when dealing with issues raised by the media, and that is to provide a clear and comprehensive response which fully addresses the issues raised. It said the approach taken is that the journalist must understand the topic so that they can then accurately relay that response when reporting or commenting on the topic for the benefit of their audience. It added that responding to media queries and the personnel involved in finalising and formulating such responses simply does not involve creating or amending policy or procedures on foot of that request; rather, the responses are simply providing as much context and information as necessary to assist the journalist-�s audience to understand the issue, in the interests of openness and transparency. It said that, accordingly, the drafting and finalisation of press responses is approached by all concerned in the SEC through the lens of providing maximum clarification and understanding of what can be complex topics.

The SEC said that the subject matter of the two responses on 13 January 2020 and 16 January 2020 are both matters of settled policy and procedure within the SEC. It said that the relevant material underpinning both queries from the newspaper had been the subject of previous requests made by the applicant. It said that, accordingly, it considers that a request for access to the records of the work involved in formulating and finalising the two press responses comes within the ambit of section 15(1)(g).

The SEC added that the applicant submitted another request (20/20) on 18 August 2020, within a day of request 19/20, but subsequently withdrew that request as he acknowledged a degree of overlap between both requests.

The SEC said that, in conclusion, it considers request 19/20 to be frivolous or vexatious and to form part of a pattern of manifestly unreasonable requests.

In response to a request from this Office for comment on matters identified as potentially relevant, the SEC also provided details of the applicant-�s previous FOI history. It said that since 2018, he has submitted 74 requests. It said 51% of those requests were granted in whole or in part, and 46% were refused. It said this was the first time it had decided to refuse one of the applicant-�s requests under section 15(1)(g).

Applicant-�s Submissions

In his submission of 12 November 2020, the applicant argued that his FOI usage must be taken in context. He said that while he made 64 requests to the SEC in 2018, they were made against a background of him having initiated High Court proceedings against the SEC and the Department of Education and Skills in 2012 and that were scheduled for hearing in 2018 but were subsequently settled on the day. He said he made four requests in 2019 and five in 2020. He noted that the SEC had not relied on the large number of requests from 2018 in support of its refusal of request 19/20 under section 15(1)(g) and as such, he argued that the past requests are of no relevance in this case.

In relation to the subject matter of email 13 January 2020, the applicant said he made four FOI requests relating to standard setting in State examinations. He said three of those requests (including request 19/20) were refused and one of the requests (15/20) was granted. While he accepted that requests 09/19 and 16/20 dealt with the same general topic of standard setting in State examinations, he said request 19/20 was for access to entirely different records. He noted that request 09/19, for records relating to the internal research report, and request 16/20, for a copy of the research report based on his view that the report had been developed since it was previously released, had both been refused. As such, he queried how the SEC could argue that it had dealt with the topic of standard setting in those requests.

In relation to the subject matter of the email of 16 January 2020, the applicant acknowledged that he had made one previous request on the topic of focused monitoring, namely request 23/18, and noted that this was also refused.

The applicant further argued that he submitted the requests in good faith under the FOI process. He stated that he had at all times engaged constructively with the SEC, including by making efforts to resolve the current matter informally. He also stated that he had endeavoured to assist the SEC to avoid unnecessary time and expense in accessing records by making suggestions as to where he believed relevant records were located, amending and clarifying requests in consultation with the SEC, agreeing to time extensions whenever requested, and withdrawing a request when he perceived a potential overlap with another request. He stated that he had made efforts to ensure that his requests were precise, clear and time-bound.

Analysis and Conclusions

I must admit that it is somewhat difficult to understand the SEC-�s logic for deciding to refuse the request under section 15(1)(g) in this case. Its reliance on the provision appears to be based on a view that it has already provided a full and comprehensive response to the newspaper on the issues of standard setting and focused monitoring, that both matters are matters of settled policy, and that it had already dealt with the applicant-�s requests for records relating to both matters. In essence, its argument appears to be that as it has already fully explained its position on the matter, it should not have to do so again on foot of a further request.

I fail to see why the SEC considers this to be a valid ground for refusing the applicant-�s request. Section 11(3) of the Act provides that in performing any function under the Act, public bodies must have regard to, among other things, the need to inform scrutiny, discussion, comment and review by the public of the activities of public bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of public bodies. The fact that the SEC has explained its position on the topics that are the subject of the emails at issue does not mean that it should not have to consider requests for the release of further records on the same topic. It is also noteworthy that the previous related requests from the applicant were, in fact, refused.

While the factors I outlined above as being relevant in assessing whether a request may be categorised as frivolous or vexatious or as forming part of a pattern of manifestly unreasonable requests are non-exhaustive, the SEC has not argued that any of those factors apply in this case, nor is it apparent to me that any of them apply.

With regard to the number of requests made by the applicant, 74 requests from a single applicant within two years is, indeed, a high volume of requests by any reasonable standard. Nevertheless, I note that the SEC did not rely on the applicant-�s FOI usage as a ground for refusing request 19/20. In any event, even if it had, I would have expected it to have regard to the fact that the high number of requests made in 2018 related to the ongoing legal proceeding and that the number of requests made subsequently dropped significantly when the proceedings were settled.

In all of the circumstances of this case, I find that the SEC has not provided sufficient evidence to justify its decision to refuse the request on the ground that it was frivolous or vexatious or formed part of a pattern of manifestly unreasonable requests made by the applicant. In conclusion, therefore, I find that the SEC has not justified its refusal of the request under section 15(1)(g).

While it forms no part of this decision, I would add that I expect requesters to have appropriate regard to the burden multiple requests places on bodies such as the SEC and to the potential impact processing such multiple requests could have on their ability to effectively carry out their other statutory functions. While the FOI Act demands that public bodies meet very high standards in dealing with requests, the Act also assumes reasonable behaviour on the part of requesters.

It is also important to note that my finding that the SEC was not justified in refusing the request at issue under section 15(1)(g) does not mean that it cannot refuse any future requests from the applicant on those grounds. The FOI process should not be abused and should not be used for purposes other than that for which it was intended, namely 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 the possession of public bodies. It should not, for example, be used as a particular mechanism for pursuing previously determined grievances with a view to attempting to compel a public body to revisit its previous decisions, although I am not suggesting that such circumstances arose in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the SEC to refuse the applicant's request under section 15(1)(g) of the FOI Act. I direct that the SEC undertake a fresh decision-making process on the applicant's request, in accordance with its obligations under 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