Whether Tusla was justified in refusing the applicant-�s request for records and a statement of reasons, under sections 15(1)(g) and 10(7) of the Act, on the ground that the request was vexatious or forms part of a pattern of manifestly unreasonable requests from the applicant

14 December 2022

Background

This case has its background in a number of similar FOI requests the applicant made to Tusla, some of which were also the subject of review by this Office. The first of those requests was made in January 2019 wherein the applicant sought access to all records relating to him. Tusla conducted searches and released some documents. Following a review by this Office, we found that Tusla was justified in refusing access to further relevant records on the ground that no further records existed or could be found after all reasonable searches had been undertaken (Case OIC-98293 refers).

The applicant made a second similar request to Tusla in October 2020. He also applied to this Office for a review of Tusla-�s decision on that request. This Office discontinued the review under section 22(9)(a)(iii) of the Act on the ground that the matter had previously been reviewed.

The applicant made a third FOI request in January 2021, requesting all information relating to him. In April 2021, he made a fourth FOI request seeking a copy of records which refer to him.

On 19 July 2021, the applicant made a fifth related FOI request to Tusla, which is the subject of this review. In his request, the applicant referred to a letter dated 28 June 2021 which appears to be Tusla-�s refusal of the fourth FOI request under section 15(1)(g) on the ground that the request was frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests. He requested a copy of all information on which the decision maker based that statement (that the request was frivolous or vexatious etc.) (request part A). He also sought the -�reasons for Tusla Manager-�s decision to -�accuse [him] of a wrong, without first carrying out an investigation in order to ascertain the facts and in doing so afford [him] the opportunity to defend [his] good name-� (request part B).

On 3 September 2021, Tusla refused the request under section 15(1)(g). On 20 September 2021, the applicant sought an internal review of that decision, following which Tusla affirmed its original decision. The applicant subsequently applied to this Office for a review of Tusla-�s decision.

During the course of this review, the Investigating Officer wrote to the applicant and provided him with details of Tusla-�s submission setting out the reason why it refused his request under section 15(1)(g). She also noted that part B of the request was essentially an application for a statement of reasons under section 10 of the FOI Act. She informed the applicant of her view that TUSLA was justified in refusing the request at part A and the application for a statement of reasons at part B under, respectively, sections 15(1)(g) and 10(7) of the Act. She offered the applicant an opportunity to comment. However, no reply has been received to date.

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 Tusla as outlined above and to the correspondence between this Office and both parties, including the submissions made on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned with whether Tusla was justified in its decision to refuse, under section 15(1)(g) of the Act, the applicant-�s request for records at part A of his request and whether it was justified in refusing, under section 10(7), the statement of reasons sought at part B.

Analysis and Findings

Section 10

Section 10(1) provides that a person who is affected by an act of an FOI body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act. Under subsection (13), an act of a body is deemed to include a decision of the body. Subsection 10 provides that an application under section 10 must be expressed to be such an application. However, subsection (11) provides as follows:

-�Notwithstanding subsection (10), where an FOI body receives either -�

a. an application which purports to be an application under this section but which is not in the proper form, or

b. an application which does not purport to be an application under this section but which applies for the information access to which can be obtained only by way of an application under this section,

the head shall assist, or offer to assist, the individual in the preparation of an application under this section."

Section 10(7) provides that -�a head to whom a request is made under this section may refuse to grant the request 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-�.

It is clear from the decisions that Tusla failed to identify part B as an application for a statement of reasons. However, as I have noted above, the Investigating Officer put the applicant on notice of the potential applicability of section 10(7) and no further submissions on the matter were received.

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 in Kelly 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. This view was endorsed by the Court of Appeal inGrange v the Information Commissioner[2022] IECA 153. In that case, the Court of Appeal found that this Office was -�entitled to take into account the history of dealings between the appellant and the Department and the previous FOI requests insofar as they were relevant to the appellant-�s grievances, as well as the context of the FOI request in question-�.

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".

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).

Tusla-�s Submission

Tusla said that it considered the repetitive nature of the requests submitted by the applicant since 2019, four of which related to repeat requests for the same records. It said that considering his previous FOI requests, it is of the opinion that the recent request forms part of a pattern of unreasonable requests. It said the scope of the request is a repeat of a request which was reviewed by this Office and that the OIC previously upheld that decision.

It submitted that the applicant has been in regular correspondence with a number of departments within Tusla, dating back to 2019 when it appears that he was dissatisfied with the outcome of a request for a Garda/Bouncer Licence which was refused and it appears that he felt a former HSE/Tusla staff member was involved in the outcome. Tusla said it has, to date, received 20 letters from the applicant in relation to his various requests and staff members have spoken to him on at least 15 occasions.

Tusla explained that it received five requests from the applicant and significant resources have been exhausted communicating with him in relation to his various requests. It argued that the applicant-�s request seeking access to records upon which the decision maker in the fourth request relied to make his decision and the request for a statement of reasons as to why the decision maker refused the request under section 15(1)(g) is consistent with an abuse of the right of access.

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, this Office takes the view that the legislation assumes reasonable behaviour on the part of requesters.

It seems to me that parts A and B of the request essentially represent an attempt to challenge the previous FOI decision made by Tusla wherein it refused to review the applicant-�s request on the grounds that section 15(1)(g) applied. I note the overall context where the fourth request is a repetition or variation of the three previous FOI requests seeking access to records relating to him. Considering the overall context of the requests, I am satisfied that the nature of the applicant-�s use of FOI comprises a pattern of conduct amounting to an abuse of the right of access. I find, therefore that Tusla was justified in refusing the request for records under sections 15(1)(g) and the application for a statement of reasons under section 10(7) of the Act on the ground that the request and application were vexatious and/or form part of a pattern of manifestly unreasonable requests from the same requester.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of Tusla to refuse the applicant-�s request for records under section 15(1)(g) of the FOI Act and his application for a statement of reasons under section 10(7) of the 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.

Sandra Murdiff
Investigator