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Whether the Board was justified in its decisions to refuse the applicant's requests for records pursuant to section 10(1)(e) of the FOI Act

Review application to the Information Commissioner under the Freedom of Information Acts 1997 & 2003 (the "FOI Act")

Background

This decision relates to three requests submitted by the applicant to the Board for access to certain records. As the parties to each review are identical, and given that each review relates to a refusal of access to records by the Board pursuant to section 10(1)(e) of the FOI Act, in my view it is appropriate that the three applications be considered together.

Each of these requests were submitted to the Board by way of letters dated 27 February 2014. In Case 140122, the applicant sought "a copy of the appropriate letter from Dr. Ryan, as Chief Executive of the Legal Aid Board who has powers under the Civil Legal Aid Act, 1995 to assign duties to certain officers of the Board, authorizing [a named officer of the Board's] making of decisions ... respect [of her legal aid applications in 2010]" and "a copy of the appropriate letter from Dr. Ryan authorizing [a named officer of the Board] to make decisions in respect of my applications for legal aid certificates in 2012". In Case 140123, the applicant sought copies of letters from Dr. Ryan, Chief Executive of the Legal Aid Board, forwarding to the Board correspondence he had received from the applicant. In Case 140124, the applicant sought, in specific detail, access to documents submitted to the Board's Appeal Committee in February 2009 in relation to its consideration of an appeal by her, and copies of "the decisions made by each individual member of the Appeal Committee".

On 3 April 2014, the Board responded to the applicant's requests by way of a single decision letter, refusing each request pursuant to section 10(1)(e) of the FOI Act, and setting out the reasons for its decision. The applicant sought an internal review of each of these decisions by way of letter dated 7 April 2014, and made further submissions at that point. By letter dated 30 April 2014, the applicant was informed that the internal reviewer had, in each instance, decided to uphold the Board's decision. On 15 May 2014, the applicant sought a review by this Office of the Board's decisions.

I note that the applicant has made two sets of quite voluminous submissions to this Office in relation to these reviews, alongside the comprehensive submissions she furnished to the Board in the context of its internal review. Mr Niall Mulligan of this Office informed the applicant by way of email dated 13 August 2014 that he was satisfied that he had received sufficient material from her in order to conclude the review. The applicant again contacted Mr. Mulligan by telephone on 8th September 2014 and provided further submissions on a specific point, but also confirmed to him that she was satisfied that she had been given a sufficient opportunity to make submissions. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting my review, I have had regard to the Board's decision on the matter and its communications with this Office, as well as the applicant's communications with this Office and the Board. I have also had regard to the provisions of the FOI Act.

Preliminary Matters

These applications arise in the context of a protracted history of interactions between the applicant and the Board, involving a number of sets of litigation, both between the applicant as plaintiff against the Board, and between the applicant and third parties. The applicant is clearly dissatisfied at having been refused legal aid in relation to some of her legal issues, and with the manner in which her applications have been handled.

She raises a multiplicity of issues going to the administrative practices of the Board, its organisational structure, the ability of named individuals to carry out their functions, her grievances regarding her purported treatment by the Board, and the substantive legal issue which gave rise to her interactions with the Board in the first instance. While it is clear that the applicant feels very strongly about these issues, such considerations are, however, beyond the scope of this review. The applicant also cites alleged data protection issues, which are also beyond the scope of this review.

On the applicant's account, it would appear that her substantive legal issue is difficult, complex and of a deeply personal nature. She indicates that these difficulties have taken a severe emotional toll on her. While one may sympathise with the applicant's situation, the only role for this Office in relation to these cases is to review the application of the FOI Act by the Board.

Scope of the Review

This review is concerned solely with the questions of whether the Board was justified in its decisions to refuse the applicant's requests under section 10(1)(e) of the FOI Act, on the basis that they are frivolous or vexatious, or form part of a pattern of manifestly unreasonable requests from the same requester.

Analysis and Findings

Section 10(1)(e) of the FOI Act provides that a request under section 7 may be refused 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". There are three separate elements in section 10(1)(e) any one of which, by itself, could provide the basis for a refusal of access. The former Commissioner stated that abuse of the right of access may warrant reliance on section 10(1)(e) and she cited a non-exhaustive list of relevant factors to consider in determining whether a pattern of conduct amounts to an abuse of the right of access, as identified in Case no. 020375 Mr. X and RTÉ (available at www.oic.gov.ie):-

"(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: do the volume of requests or appeals increase following the initiation of court proceedings or by 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? "

Unlike in the vast majority of FOI applications, this Office considers that the motive of the requester may be taken into account when considering if a request is 'frivolous or vexatious'. In Mr X and RTE the former Commissioner provided the following guidance in that regard:-

- Any decision to find that a request is 'frivolous or vexatious' should not be taken lightly.

- Each case must be judged on its own merits having regard to the criteria set out by the Commissioner.

- The rights provided by the FOI Act must not be abused by public bodies or members of the public.

- The fact that a particular individual had a made a 'frivolous or vexatious' request in the past is not an indication that other requests from that individual are also 'frivolous or vexatious'.

The applicant, in her submissions to the Board, demonstrated familiarity with and adequately addressed each of the above criteria.

The applicant's pattern of conduct
Before addressing the applications at issue in this decision, I will first consider the applicant's pattern of conduct in relation to her FOI requests to the Board. In its decision, the Board stated that out of the twenty-five requests under the FOI Act received by it since 2013, eighteen had originated from the applicant, and that this was "way out of line with what might be considered reasonable for any public body". The applicant contended in her submissions that she had submitted relatively few requests prior to 2013, and that her requests from that time were based on her "irrefutable need to know certain facts". Having carefully considered the evidence available to me, and in particular the applicant's submissions, in the circumstances of this case, I am satisfied that the number of requests filed by the applicant, constituting 72% of the total requests received by the Board in the past year, is excessive by reasonable standards.

Of these eighteen requests, it appears that records were released to the applicant in two instances, while the remainder were refused. This Office accepted review applications from the applicant in relation to nine of these refusals. Five of these cases have been concluded by way of binding decision, resulting in the Board's decisions being upheld (Cases 130230, 130308, 130309, 140091 and 140138 refer), one case was withdrawn by the applicant on the basis of her acceptance that adequate reasons under section 18 of the FOI Act had already been furnished to her by the Board, while the remaining three cases are the subject of this decision.

Having carefully examined a number of the applicant's past requests as received by this Office, I am of the view that, in general, they tend to be unusually detailed. In relation to her applications under section 18 of the FOI Act, it would appear that the applicant may have been mistaken as to the level of detail to which she was entitled . Even so, the applicant has regularly sought statements of reasons in relation to the minutiae of the Board's administrative processes (for example, Cases 130309, 140091 and 140138 refer). In its decision letter in Case 130309, the Board stated that "[the decision maker] consider[s] that this request, along with a similar number of section 18 requests you have made in recent weeks, is frivolous, vexatious and unreasonable, and designed to do little else than discommode the Board in its efforts to provide a valuable public service at a time of severely curtailed human and financial resources." The applicant's requests for access to records under section 7 of the FOI Act also tend to be unusually detailed, often relating very specifically to records which she believes ought to exist (see below).

Similarly, the Board submits that a portion of the applicant's requests relate to records or correspondence generated by her. For example, in Case 130230, the applicant sought a schedule of records that had been furnished by her to the Board on two particular occasions. Similarly, in Case 130308, the applicant sought a schedule of the records held by the Board relating to her. The Board submitted that it is in the possession of "a huge number of records in respect of [the applicant], numbering in the hundreds (if not thousands), the vast majority of which were created by [the applicant] herself and a large number of which ... are superfluous to her dealings with the Board."

While the applicant submits that she had not made any significant volume of FOI requests prior to 2013, it may be noted that, by way of letter dated 1 June 2010, the Board advised her that it "will be closely examining any further Freedom of Information ... requests from [her] in respect of [her] files to determine whether they should be deemed frivolous and vexatious ... much of the difficulty in dealing with such requests arises from the significant volume of documentation you yourself have generated, which means that searches of your material place a significant administrative burden on the board".

Each of the requests forming the subject matter of this decision were made on 27 February 2014. In the applicant's own submission, she had submitted "very few" requests under the FOI Act between 2010 and 2013, from which time she has made 18 requests. It is of significance that, on 17 January 2013, the applicant states that she submitted a "priority application" for legal aid in order to obtain Senior Counsel's opinion in relation to a particular issue. A further submission for legal aid by the applicant was received by the Board in April 2013, and subsequently refused.

While, as previously outlined, the applicant's requests tend to be unusually detailed and specific, each of them relates, in one way or another, to the consideration by the Board of applications by her for legal aid in relation to a number of sets of High Court proceedings to which she is a party, and to the refusals of such applications. The Board submitted that, "it is not feasible or economical for the Board to continue to deal with the exact same matter that has already been fully processed" and, in its decisions on the applications that are the subject of this review, informed the applicant that:-

"The large number of requests submitted by you appears to be founded on your dissatisfaction with the Board in respect of its refusal, in a number of applications, to provide you with legal aid. Despite the fact that the Board has considered your legal aid applications in line with relevant legislation, with the benefit of advice from Senior Counsel on more than one occasion, and that any refusal may be appealed to the Board's statutory committee, you do not seem to be able to accept the fact that you have not been provided with legal aid. As a result, you have submitted a large number of FOI requests (and voluminous other correspondence detailing requests and demands) to the Board in what seems to be an effort to force the Board to provide you with legal aid."

The Board further stated:-

"These and many other examples of your FOI requests demonstrate that you are abusing the right of access for reasons other than accessing records or seeking reasons for acts which affect you. In short, you are using FOI as a tactic in what you see, at this stage, as a dispute with the Board."

The applicant vehemently argued in her submissions that she made all of her requests on a "need to know" basis, and justifies her desire for such a level of detail by reference to what she deems to be failings on the part of the Board in its dealings with her. Having closely examined the evidence before me, I am satisfied, at the very least, that the applicant's primary use for the FOI Act is to revisit issues which have previously been addressed; namely, her applications for legal aid and in particular the Board's refusals of such applications.

While it would be possible to infer from the evidence that the applicant's intent is to place such a burden upon the Board through her use of the FOI Act as would affect its approach towards her applications for legal aid, there is no single unambiguous piece of evidence before me to demonstrate such an intent. Having carefully considered the evidence, on balance, I am not convinced that the applicant's intent is to "break or burden the system". Nevertheless, I am satisfied the net effect of her ongoing use of the FOI Act is to place an undue and unjustifiable burden upon the Board in the discharge of its statutory duties, and that this is a natural and probable consequence of the manner in which she has used the Act.

Overall, having had regard to the criteria set out by the former Commissioner in Case 020375, and having closely scrutinised the available evidence, I am satisfied that a pattern of conduct may be discerned in the applicant's use of the FOI Act in her dealings with the Board that amounts to an abuse of the right of access and that the three requests at issue in this review form part of that pattern of conduct amounting to an abuse of the right of access.

Case 140122
In Case 140122, the applicant sought "a copy of the appropriate letter from Dr. Ryan, as Chief Executive to the Legal Aid Board who has powers under the Civil Legal Aid Act 1995, to assign duties to certain officers of the board, authorizing [a named officer of the Board's] making of decisions in this respect" and "a copy of the appropriate letter from Dr. Ryan, authorizing [a named officer of the Board] to make decisions in respect of [her] applications for legal aid certificates in 2012".

The Board stated in its decision that "... the applications have been fully dealt with and are finished and, in any event, no such letters are required, as you are no doubt aware". The applicant submitted that she was not aware that such letters were not required and that, under such circumstances, it would be more appropriate for this application to be refused under section 10(1)(a) of the FOI Act, on the basis that does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

The applicant made applications for legal aid in March and May 2012. It appears that one of these applications was refused, while the second remains extant. It seems to me that the applicant seeks to make use of the FOI Act in this instance to revisit the refusal of her application, by attempting to challenge each step of the Board's administrative processes. Indeed, the applicant's submissions focus quite openly on these issues. Furthermore, the applicant complains in relation to an officer of the Board identified by name in her request that she "do[es] not consider [her applications for legal aid] to be a matter for the attention of a civil servant but rather a matter for an unbiased solicitor to make decisions in consultation with me..." It seems to me that this is a clear example of the applicant's use of FOI to challenge the Board's decision on her legal aid application.

Case 140123
In Case 140123, the applicant sought a copy of a letter from Dr Ryan, Chief Executive of the Legal Aid Board, forwarding to a branch office of the Board correspondence he had received from the applicant. On 17 January 2013 and 15 March 2013, the applicant wrote to the Chief Executive, referring to matters surrounding litigation between herself and the Board. The Chief Executive replied to the applicant by way of email on both occasions, stating that he would forward her letters to a named officer of the Board for consideration. This is the same officer of the Board identified in the applicant's request in Case 140122.

In its decision, the Board stated that "[t]his is one of many examples where you seek correspondence under FOI which was brought about by correspondence created by you". I have set out other examples of such requests by the applicant earlier in this decision.

In her submissions, the applicant stated that this request was necessitated in the context of her correspondence with the Board's solicitor in relation to proceedings prosecuted by her against the Board. It appears that the applicant had indicated to the Board's solicitor that no decision had been made in relation to her application for legal aid for those proceedings. The solicitor requested that the applicant provide written confirmation from the Board of this position. The applicant then wrote to Dr Ryan directly, requesting such confirmation, rather than contacting the officer of the Board who had handled her application. Dr Ryan indicated by email stating that he would forward her correspondence to that officer.

The applicant argued that she "wish[es] to know whether or not Dr Ryan was telling the truth when he sent e-mails to me confirming having sent copies of my letters to him ... to [a named officer of the Board]". She stated that "[e]ither the letters exist or they do not ... if they do not you are to say so and may therefore refuse this Section 7 request on the basis that they do not exist or cannot be found", and that she "sense[s] concealment on [the] part [of the named officer of the Board] with ulterior motive."

It would appear that the Board communicated to the applicant on a number of occasions, from late 2010, that it considered the legal aid application in question to have been refused. In the Board's submission, the applicant did not accept this decision and returned the refusal letters to the law centre.

In the circumstances, it appears that the applicant's request under the FOI Act represents an attempt to revisit an issue which has previously been addressed and forms part of her pattern of conduct, set out earlier in this decision, amounting to an abuse of the right of access.

Case 140124
In Case 140124, the applicant sought, in specific detail, documents submitted to the Board's Appeal Committee in February 2009 and "decisions made by each individual member of the Appeal Committee". In relation to the latter, the applicant stated that, "[e]ach decision must be directly related to each and every point of law which I have raised in my documentation together with fact and event which I have recounted."

The Board's decision letter stated that the "meeting was over 5 years ago at this stage and the matter is long since finalised." The applicant disputes that the matter has been finalised, and claims that she has an "indisputable right to the documents which I seek" and that "the documents which I seek must be furnished to me in order for me to properly understand the reasons for the relevant 'decision' in this respect". The applicant submits that she has "increasing doubts over whether all documents which I requested to be forwarded to the Appeal Committee were actually furnished".

The applicant refers to judicial review proceedings brought by her in relation to the decision taken by the Appeal Committee in 2009. These proceedings were struck out based on an agreement between the parties in 2012, and the matter was remitted to the Board for reconsideration. Therefore it may be the case that she has exhausted any legal remedies available to her in relation to this matter. In any event, it is clear to me that the applicant is making use of FOI in this instance essentially to revisit, to a minute level of detail, the Board's handling of her application for legal aid.

Having carefully considered the evidence before me, I am of the view that the Board is justified in asserting that the matter has been finalised. Taken in isolation, I would not regard this to be a sufficient reason for a refusal. In the normal course, the fact that records relate to an historical matter has no bearing on the right of access set out in the FOI Act. However, having regard to the provisions of section 10(1)(e) of the FOI Act and the overall context in which the applicant made her request, as set out above, taken together with the level of detail in the applicant's request, I am satisfied that this application forms part of a pattern of conduct amounting to an abuse of the right of access.

Conclusion

The applicant very vigorously submitted that all of her applications are made on a "need to know" basis. I do not doubt that the applicant herself believes this to be the case, and I have sympathy for her position. However, viewed impartially and objectively, it is difficult to see the applicant's behaviour as anything other than manifestly unreasonable and an abuse of the right of access under the FOI Acts. My overall impression is that the applicant is attempting to use the FOI Act in an attempt to essentially micro-manage the operations of the Board in its dealings with her. This may well be attributable to her anxiety in relation to the legal issues facing her, as she sees them. Nevertheless, it is not an appropriate use of the FOI Act.

The long title to the FOI Act states that its purpose 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 public interest is ill-served by the FOI Act being invoked for the purpose of forcing the Board to devote scarce resources attending to a large volume of requests relating to the minutiae of each step in its dealings with a an individual, particularly at a time when it is subject to a high demand for its services.

For the foregoing reasons, therefore, following very careful consideration of the cases, I find that the Board was justified in refusing to grant these particular requests on the grounds that they are frivolous, vexatious or form part of a pattern of manifestly unreasonable requests.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decisions of Board in these cases.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator