Whether the HSE was justified in refusing the applicant's request under section 15(1)(g) of the FOI Act (frivolous/vexatious/pattern of unreasonable requests)

15 July 2022

Background

The applicant's FOI request of 23 October 2021 sought access to "all files, including electronic (email, SMS, MMS, Whatsapp, faxes, voicemails, notes, or any other format used) from all internal communication and any external communications [in a specified unit of the HSE's mental health services] and including the administrative section of [the relevant unit] and any other area of the administrative services such as the internal review section or the Service Feedback manager and any other body, party or agency" regarding him from August 2018.

The applicant excluded any information in particular clinical files, and emails or texts sent to or by him. He said that, otherwise, his request included and was not limited to information as set out above regarding the following:

• The administration and processing of all his FOI or GDPR requests, including internal reviews; requests and all communications between the HSE and this Office; and complaints and organisation of meetings.
• Communication between any member of the HSE mental health service and any other area of the HSE and any outside party.
• Any internal HSE contacts regarding information relating to the applicant or on how to respond to complaints or requests for information or any other process. He gave an example of a letter sent to an HSE official by his advocate. He said he believed that the official's response was advised to her and said that there should be a lot of internal communication about how the official should respond to various requests for information.
• Any internal information or considerations about the applicant in relation to his care.
• A decision he had received from this Office further to a particular earlier review, and the FOI requests that led to the OIC application and any other FOI request he made. 

In addition, the applicant said that his request encompassed all copies of the administration and processing of complaints decisions, GDPR decisions or FOI decisions sent internally between HSE agents. He sought access to a particular file and a submission referred to in the earlier OIC decision, and any internal or external communications (as described at the start of his request) regarding the submission. He sought details of all internal notes, memos or emails, etc. regarding both his FOI request and the formulation of a particular position taken by the HSE during the earlier OIC review.

Finally, the applicant said that relevant files and information were held by various people, including but not limited to 12 named persons and "any other unnamed HSE agent that in any way communicated or took notes etc. about the processing of the FOI requests or complaint processes".

The HSE's decision of 23 November 2021 refused his request under section 15(1)(g) of the FOI Act on the basis that it was vexatious and unreasonable. It also said that the request, following all of the applicant's previous requests and correspondence, showed a pattern of conduct which, by that stage, amounted to an abuse of the FOI process and the right of access.

On 25 November 2021, the applicant sought an internal review of the HSE's decision, which the HSE affirmed in its internal review decision of 20 December 2021. On 6 January 2022, the applicant applied to this Office for a review of the HSE's decision.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, the HSE and the applicant, as well as to the provisions of the FOI Act.

Scope of Review

This review is carried out under section 22 of the FOI Act, and its scope is confined to the sole issue of whether the HSE's decision on the applicant's request is justified under section 15(1)(g) of the FOI Act.

Analysis and Findings

Section 15(1)(g)

Section 15(1)(g) provides for the refusal of access to a record, where the public body considers that the request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests from the same requester or from different requesters whom the body considers to have made the requests acting in concert. 

This Office has found in other cases 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 process or an abuse of the right of access. A number of non-exhaustive factors are 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?
• 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 intent of the requester - is the requester's aim to harass the public body?

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). It is also noteworthy that in her judgement 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.

Both parties to this review consider their positions to be well founded, and have provided detailed supporting arguments. I would normally go on to set out and consider those arguments in order to decide on whether the HSE's decision on the request is justified.

However, the applicant also now says that he is willing to amend his request to make it easier to deal with (see the Appendix to this decision). While I do not intend to publish the Appendix with this decision, to preserve privacy rights in particular, the amended request can be summarised as follows:

1. All documentation regarding the drafting and submission of a particular claim made by the HSE to the OIC in the earlier review. The applicant says that he does not have a timeframe for the drafting of the submission, or names of who drafted or provided it to the OIC but that the submission itself would have been made from October 2020 onwards. He says that the formulation of the unfounded claim may lay in other requests or processes or other communication and if so, he wants such records.

2. All information from February 2021 onwards regarding any internal contacts between a particular HSE staff member and other HSE staff, which contain information relating to the applicant, or considerations on how to respond to requests for information or any other process.

3. A file from an external source, as referred to in the earlier OIC decision. The applicant says that he has not received the file, nor has it been identified by the HSE (which he notes fell outside of the scope of the earlier request).

In these circumstances, I do not consider it appropriate to decide whether the HSE's grounds for refusing the request as originally framed is justified under the FOI Act. Neither do I feel it appropriate to essentially act as a first instance decision maker in relation to the amended request.

Accordingly, I have decided to annul the HSE's decision on the original request. I direct it to carry out a fresh decision making process on the amended request, as set out in the Appendix, in accordance with the provisions of the FOI Act. Should a valid application be received arising from my decision in this case, this Office will endeavour to process that application as quickly as possible.

The applicant should be aware that I can offer no assurance as to the outcome of that fresh decision making and/or review process. In particular, I note his position that this Office previously told him that he could make FOI requests for particular details. This is not, of itself, unusual. However, such comments are not guarantees that the ensuing requests will be granted. Furthermore, while it is generally reasonable for a requester to use FOI to establish certain facts and information about an issue of concern, requesters must also act reasonably and acknowledge that there are practical limits on the extent of the resources that an FOI body must expend in dealing with such requests.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE's refusal of the applicant's request of 23 October 2021 under section 15(1)(g) of the FOI Act. I direct it to make a decision on the amended request, submitted by the applicant to this Office on 7 June 2022, as contained in the Appendix to this decision.

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.

Deirdre McGoldrick
Senior Investigator