Whether the Council was justified in refusing a number of requests for access to various records relating to a named dog pound under section 15(1)(g) of the FOI Act on the ground that the requests formed a pattern of manifestly unreasonable requests

16 June 2021

Background

On 23 September 2020, the applicant made four separate requests to the Council for various records, dating back to 2010, relating to a named dog pound. The requests were as follows:

• A list of all bids made in relation to tenders for dog pounds and related services, including bids made by three named individuals, bids that made reference to the named dog pound, and all related documents outlining the evaluation of tenders, notifying tenderers, debriefing unsuccessful tenderers, checking tax clearance certificates, and awarding the contract. (Council reference FOI/2020/144)
• All inspection reports for the named dog pound and any commentary or memos or communications relating to those reports, all reviews of the pound, including the annual review, and all documentation relating to the renewal of the contracts with the dog pound, to include all records submitted in relation to the renewal of the contracts. (FOI/2020/145)
• All complaints or other communications from the public, or other external people or bodies in relation to the dog pound and any memos, or other internal communications about these complaints or communications. (FOI/2020/146)
• All communications received by the Council or any Council members or its employees to or from the dog pound or its employees or three named individuals, and all internal communications, including emails, memos, texts, etc. mentioning the dog pound or the three named individuals. (FOI/2020/147)

On 24 September 2020, the Council wrote to the applicant and informed him that it had decided to merge the four requests as they related to the same issue and would be considered by the same decision-maker. It also informed the applicant that as the combined request related to a very wide timeframe and would potentially capture a large number of records, it would meet the criteria of section 15(1)(c) of the FOI Act and would likely be refused on the grounds that it was voluminous. It asked the applicant to refine the request, both in terms of timeframe and scope, so that responding to it would not cause significant disruption to the workings of the section concerned.

In response, the applicant referred to a previous decision of this Office (case OIC-56431) wherein we found that the FOI Act does not provide for the merging of requests for the purpose of calculating a fee for the search for, and retrieval and copying of, relevant records. In its reply, the Council said that the Act does not prevent it from combining requests which might come in separately, but which all relate to the same issue, particularly if they are sent in the same short period of time. It also said it was not combining the requests in order to charge fees. In response, the applicant indicated that he did not accept that the Council was not combining the requests in order to charge fees and again cited case OIC-56431 in support of his argument. He did not suggest any amendments to his requests.

On 21 October 2020, the Council issued a decision under reference FOI/2020/146. While it indicated that it had decided to refuse the request under section 15(1)(g) of the FOI Act, it essentially refused all four requests on the basis that the four requests, having been made within minutes of each other, comprise a pattern of manifestly unreasonable requests from the same requester. On 6 November 2020, the applicant sought an internal review of that decision, following which the Council affirmed its original decision. On 8 December 2020, the applicant sought a review by this Office of the Council’s decision.

During the course of this review, the Investigating Officer informed the applicant of her view that the Council had justified its decision under section 15(1)(g) of the FOI Act. The applicant was invited to make a submission in response, and he has done so. 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, as well as the submissions made by the Council and the applicant on the matter.

Scope of Review

This review is concerned solely with whether the Council was justified in refusing the applicant’s four requests under section 15(1)(g) of the Act on the ground that they form a pattern of manifestly unreasonable requests.

Analysis and Findings

Section 15(1)(g) of the Act 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 from the same requester. 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.

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.

In its submissions to this Office, the Council said that individually, some of the four requests submitted by the applicant, within minutes of each other, were potentially extremely large in scope and would have merited the levying of fees. It said that in total, they contained 12 separate requests for records relating to the named dog pound covering a time span of 10 years, from 2010-2020. It said that if processed, the four requests would, under its normal FOI procedure, have been assigned to a single FOI decision-maker in the section of the Environment Department with responsibility for, and access to the records relating to, the dog pound. It said that having consulted the departmental decision-maker regarding the potential work involved in searching, retrieving and scheduling responses to all four requests, the FOI Officer decided to combine all four requests into one.

The Council added that the FOI Officer wrote to the applicant on 24 September 2020 informing him of his intention to merge the four requests into one, his main concern being the administrative burden it would place on the staff and section concerned, particularly at a time when many of the staff were working remotely. It said that as a combined request, the FOI Officer considered that it would meet the criteria as laid out in Section 15(1)(c) of the Act and asked the applicant to consider refining his request. It said the FOI Officer made a number of suggestions about how this could be achieved, such as reducing the time span of the request, and avoiding such phrases as “all communications”.

The Council said that as the applicant was unwilling to refine his request as suggested, all four requests were registered and acknowledged. It said it subsequently refused all four requests under Section 15(1)(g) on the ground that they formed a pattern of manifestly unreasonable requests.

On the matter of the basis on which it formed the view that the requests would meet the criteria laid out in section 15(1)(c), which provides for the refusal of a request where granting the request would cause a substantial and unreasonable interference with, or disruption of, work of the body, the Council noted the extent and breadth of the various requests. For example, it said that one part of FOI/2020/147 that sought access to all internal communications, including emails, memos, texts, etc. mentioning the dog pound or the three named individuals, would require the departmental decision-maker to search 10 years of internal communications for any such records. On the matter of request FOI/2020/146, which sought access to 10 years of complaints, the Council said that it has had a Customer Response Management System in place for a number of years, and this is searchable in a number of ways. It said the system records communications and representations from the public and public representations in relation to various issues, including complaints.

The Council added, however, that there are a multitude of other mechanisms by which, over the last 10 years, “complaints or other communications from the public, or other external people or bodies” might have been made, including hand-written correspondence to individual staff, Directors, and the Office of the Chief Executive, via a Public Reps system which logs representations from public representatives such as Councillors, via email, via phone-calls which may/may not have been recorded, and enquiries from media and journalists to its Press Office. It further noted that the applicant wanted any related internal communications about these complaints.

In his application for review, the applicant argued that he had not been consulted about merging the four requests before the Council decided to do so. In a subsequent submission to this Office, he argued that he had not been given an opportunity to reduce the workload of the requests as submitted, but rather he was offered an opportunity to refine the merged request, which he argued the Council was not entitled to merge. He also referred to his exchanges with the Council relating to the charging of search and retrieval fees for requests.

It seems to me that there is a degree of overlap between a number of separate provisions of the Act in this case. Section 15(1)(c) essentially provides for the refusal of voluminous requests. Section 15(1)(g) allows for the refusal of requests that form part of a pattern of manifestly unreasonable requests. Section 27 provides for the charging of search and retrieval fees when granting requests. It also provides for the refusal of a request where the cost of search and retrieval is likely to exceed a certain specified limit, currently €700.

As I have outlined above, the applicant drew the Council’s attention to case OIC-56431 wherein this Office found that the FOI Act does not provide for the merging of requests for the purpose of calculating a fee for the search for, and retrieval and copying of, relevant records. While I note that the Council engaged with the applicant on that issue and raised the issue of fees in its submissions to this Office, it seems to me that my decision in case OIC-56431 has no bearing on this case. It is worth re-stating that this review is concerned with whether the Council was justified in refusing the request under section 15(1)(g), and not with whether the Council was entitled to merge the requests for the purposes of charging search and retrieval fees.

The essence of the Council’s argument is that the requests form a pattern of manifestly unreasonable requests based on its view that;

• the applicant made four requests relating to the same subject matter,
• the requests were made within a very short space of time, thus requiring almost simultaneous processing, by the same department and/or staff,
• the requests were of such breadth that the processing of the requests would cause a substantial and unreasonable interference with, or disruption of, its work, and
• the applicant refused to engage with the Council on the refinement of his requests in an effort to reduce that substantial and unreasonable interference or disruption.

In essence, the applicant’s argument is that the Council is not entitled to treat the four requests as a single request.

It is correct to say that the Act does not provide for the merging of requests for the purpose of refusing the merged request under section 15(1)(c), nor does it provide for the merging of requests for the purpose of charging a fee for the search for, and retrieval and copying of, relevant records under section 27(1). It does, however, allow a public body to take account of the totality of the requests made when considering if the requests should be refused under section 15(1)(g). I would add that in certain circumstances, it seems to me that a public body may appropriately consider if certain requests have been submitted in place of a single request in order to circumvent certain provisions of the Act, including sections 15(1)(c) and 27(1), when deciding whether the requests fall to be refused under section 15(1)(g).

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 15(1)(g).

Having regard to the wording of the requests, it seems to me that they are indeed broad and wide-ranging. All four requests cover a significant time span of ten years. They seek access to all records in specified categories (dog pound tenders, inspections, complaints, and communications) and all records related to those categories. They all relate to a specific subject matter. It seems to me that each request, of itself, would require quite an allocation of time and staff resources. Furthermore, all four requests were submitted within minutes of each other and as such, if the Council was to process all four requests within the time-frame set out in the FOI Act, I have no doubt that the processing of the requests would have caused a substantial and unreasonable interference with, or disruption of, its work.

I note that the Council explained the effect that processing the requests would have on its work in its email of 24 September 2020 to the applicant. It said that “In assessing the potential number of records requested and very wide timeframe applied (almost 10 years), in my opinion this combined request would easily meet the criteria of being voluminous, as outlined in Section 15 1 (c) of the FOI Act 2014”. It went on to ask the applicant to “... refine the request, both in terms of timeframe and scope, so that responding to it will not cause the above referenced significant disruption to the workings of the section concerned, leading the request to be refused outright”. The FOI Officer also recommended “… avoiding the use of phrases such as “any/all communications”, particularly over a 10 year period, as this can lead to an FOI Request being deemed voluminous”.

In response, while the applicant said he appreciated the position the Council was in, he simply referenced case OIC-56431 in support of his view that the requests could not be merged. While I accept that the applicant may have taken this position based on his view that the Council was seeking to merge the requests in order to charge search and retrieval fees, the fact remains that the Council’s email of 24 September 2020 was quite clear in explaining the impact that processing the requests would have on its work. I also note that the Council explained in a follow up email that it was not combining the requests in order to charge fees. However, the applicant did not accept this, nor did he avail of the offer to engage with the Council in an effort to refine the scope of his requests.

In essence, the applicant argued that he was offered an opportunity to refine a request that should not have been merged and was not offered an opportunity to refine the individual requests. I do not accept that argument. It is clear that the Council’s position was that processing the requests would have a significant impact on its work, regardless of whether they were treated as four individual requests or as a single amalgamated request.

In my view, it was not unreasonable for the Council to seek to reduce the administrative burden that would have arisen had it been required to process all four requests. 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. I would expect requesters to at least consider the arguments made and the reasons given for seeking to negotiate a reduced scope. While requesters are fully entitled to refuse to engage in reducing the scope of their requests, by doing so they run the risk of their requests being refused on one of the relevant administrative grounds.

In the circumstances of this case, I find that the applicant submitted four broad and wide-ranging requests to the Council concerning the same subject matter within a very short space of time, and that he did not engage with the Council when invited to do so in an effort to reduce the scope of those requests despite the fact that the Council informed him of the potential impact that processing the requests would have on its work. Accordingly, I find that the four requests comprise a pattern of manifestly unreasonable requests and that the Council was justified in refusing to grant them under section 15(1)(g).

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