Whether the Council was justified in its decision to refuse a number of requests for access to various records under section 15(1)(g) of the Act, on the ground that the requests form a pattern of manifestly unreasonable requests

26 April 2022

Background

This review concerns eight separate requests made by the applicant between 18 and 20 December 2021, seeking access to records relating to the Council's handling of a number of finance, procurement, planning and development, and environmental matters. The requests were as follows, seeking:

• All accounts and contracts, payment and monies paid to [a named individual] and or a named company and the full disclosure of all relationships including advisory the aforementioned company/individual has and has had with the Council and Interreg presently since 2012 on a year on year basis.
• All expenditure by the Council for Dune Management/Protection and coastal protection in Strandhill since 2011.
  • funding stream
  • project Objective
  • contractor undertaking project on behalf of Sligo Co Co
  • cost of project on case by case basis
  • time scale for project delivery
• Map of the Council owned property in Strandhill/Coolera and a map of the public spaces in Strandhill.
• The Planning Approval and Environment Impact Assessment and/or Appropriate Assessment Airport and/or Part 9 for the illumination and lighting upgrades and all Strandhill Airport development earth works which were carried out in Summer 2021.
• All accounts and contracts, payment and monies paid to a named individual and or Sligo IT for tourism research in Strandhill and full disclosure of all relationships including advisory by the aforementioned individual or in his academic capacity in IT Sligo presently and has had with the Council presently since 2012 on a year on year basis.
• Minutes from the Trailgazers Business to Consumer Workshop held in Strandhill Airport on 2/11/2021, entitled, 'How to sustainably develop the Queen Maeve Trail and Killaspugbrone Coastal Loop and create B2C and community opportunities that was promoted by the Council, and the presentation and powerpoint and all statistics presented at the event.
• The result of the research carried out on the Killaspugbrone Looped Trail and Queen Maeve's Trail for the Trail Blazers Bid, which walks were chosen as part of the pilot research project, to include the outcome regarding:
  • Specific to Strandhill how recreational these trail can grow the small rural community
  • What is the proposal to increase the number of visitors
  • What is the strategic plan regarding future proofing and destination management of these sites to protect the area's natural and cultural assets.
• The details of former owners and corresponding property folio numbers and purchase price for the lands purchased by the Council for the proposed new road linking the Airport Road to R292.

In a decision dated 22 December 2021, the Council refused all eight requests. It noted in its decision that the applicant had made 55 requests in 2021 and refused the eight requests under section 15(1)(c), on the ground that researching and retrieving such number of records had resulted in a disruption to the work of the Council. It also considered that the requests formed a pattern of manifestly unreasonable requests and thus refused the requests under section 15(1)(g). On 29 December 2021, the applicant sought an internal review of that decision, following which the Council affirmed its original decision. On 8 February 2022, the applicant applied to this Office for a review of the Council'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 Council as outlined above and to the correspondence between this Office and both parties, including the submissions made by the Council and the applicant on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Council was justified in its decision to refuse the applicant's requests under section 15(1)(c) of the FOI Act, on the ground that processing the requests would cause a substantial and unreasonable interference with, or disruption of, its work, and/or under section 15(1)(g) of the Act, on the ground that the requests form part of a pattern of manifestly unreasonable requests.

Preliminary Matter

In her initial submission to this Office for a review of the Council's refusal of her requests, she expressed concerns about the manner in which the Council dealt with a number of environmental and planning matters and about the manner in which she was treated by the Council. I should explain that it is not within the remit of this Office to examine complaints about how FOI bodies carry out their administrative functions or to adjudicate upon how they perform their functions generally.

Analysis and Findings

As I consider it to be of most relevance, I propose to deal first with the Council's refusal of the requests under section 15(1)(g) of the FOI Act.

Section 15(1)(g)

Section 15(1)(g) of the FOI Act provides for the refusal of a request that an FOI body considers 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 instance, 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.

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 must be stressed that this list is non-exhaustive, nor is it not necessary for all of the above factors to be present before a request can be refused under section 15(1)(g).

Moreover, the outcome or cumulative effect of the requests is also a relevant consideration. 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 inKelly 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.

When considering whether a request forms part of a pattern of manifestly unreasonable requests in accordance with section 15(1)(g), the question I must consider is 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 15(1)(g).

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 15(1)(g). 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". 

Council's Submissions

In its submissions to this Office, the Council said that the applicant submitted a total of 55 FOI requests in 2021, including the eight requests at issue in one weekend. It said it informed the applicant that while it made every effort to respond to her requests in a comprehensive and timely manner, it considered it unreasonable that the Council is expected to process this volume of requests, given the significant commitment of staff resources to research and retrieve documentation and prepare responses to each request. It said the applicant's use of FOI has placed a major strain on its resources to assign staff to carry out extensive research in order to respond to the various queries, and argued that many of the requests are minor variations on the same subject. It provided this Office with a schedule of the applicant's 55 requests. It argued that it is patently unfair and unreasonable to be expected to process a relentless series of requests from one applicant.

The Council added that in addition to submitting 55 requests, the applicant has also issued extensive email correspondence to Council staff outside of the FOI process. It said that if the query is not answered immediately, a series of emails will be received by way of immediate follow-up. It said one member of planning staff received a total of 60 emails from the applicant in the period July 2020 to December 2021. In claimed that in one instance, the applicant reported a staff member to the Chief Executive Officer on the erroneous claim that her correspondence was not dealt with. It suggested that this level of what it described as intimidating behaviour is not acceptable and exerts undue pressure on individual staff members. It said the applicant also visits its Offices on a regular basis requesting to meet with staff on a number of planning issues of concern to her. It argued that the relentless pattern of visits, emails, and FOI requests has placed a major strain on its staff.

The Applicant's Response

In response, the applicant said she was shocked that she has been accused of intimidation. She said she was not permitted into the Planning Offices without an appointment. She said she believes that the FOI process is a process to enable the public access to public records.

My Analysis

The refusal of a request under section 15(1)(g) 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 the 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, we also take the view that the legislation assumes reasonable behaviour on the part of requesters.

Having regard to the applicant's initial submissions, it seems to me that she is, in essence, arguing that her use of the FOI process and her past engagements with the Council was as a result of her concerns about the manner in which the Council dealt with a number of environmental and planning matters of interest to her. While that may well be the case, it does not provide an appropriate basis for unreasonable behaviour. It is of note that the applicant did not dispute the Council's summary of its dealings with the applicant.

It seems to me that on any reasonable analysis of the matter, the applicant's engagements with the Council over the period in question have been excessive. It further seems to me that the applicant's use of FOI has formed an integral part of her strategy for challenging the Council in respect of those matters about which she has concerns. While it is not unreasonable that a requester may avail of FOI to establish certain facts and information about an issue of concern, it is important for requesters to acknowledge that there are practical limits on the extent of the resources that an FOI body must expend in dealing with such requests.

It seems to me that in this case, having regard to the significant number of requests made over the period and the other extensive email dealings with the Council, the applicant has had little or no regard for the significant burden that was placed on the Council by having to engage with her in the manner outlined. I am also of the view that the applicant's many requests can reasonably be regarded as forming a pattern of manifestly unreasonable requests and that the eight requests that are the subject of this review form part of that pattern of manifestly unreasonable requests. I find, therefore, that the Council was justified in refusing the requests at issue under section 15(1)(g) of the Act on the ground that they form part of a pattern of manifestly unreasonable requests.

For the sake of completeness, I should say that this decision does not, of itself, mean that all future requests submitted by the applicant may be refused under section 15(1)(g). The applicant clearly has strong concerns about certain planning and environmental matters and it may well be the case that she will want to avail of the FOI process to obtain relevant information about such matters. However, in doing so, I would urge her to use the regime in a reasonable fashion. Indeed, the Council may be in a position to engage with the applicant on such matters to see how it can best meet her information needs. I would also note, for the benefit of the applicant, that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by FOI bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought.

Sections 15(1)(c) and 15(4)
Given my decision on section 15(1)(g), there is no need for me to make a finding in relation to section 15(1)(c). However, I note that the Council did not make submissions to this Office in respect of its compliance with the requirements of section 15(4) prior to refusing the applicant's request under section 15(1)(c).

I wish to draw the Council's attention to section 15(4) of the Act, which provides that section 15(1)(c) shall not apply unless the FOI body has first assisted, or offered to assist, the requester to amend the request for re-submission such that it no longer falls within section 15(1)(c). But for this Office finding that the Council was justified in refusing the request under section 15(1)(g) of the Act, it would have been necessary for this Office to review the Council's compliance with the provisions of section 15(4).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse the applicant's requests under section 15(1)(g) 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