Whether the Department was justified in refusing, under section 15(1)(g) of the FOI Act, the applicant-�s request for certain records on the ground that the request formed part of a pattern of manifestly unreasonable requests from different requesters who appear to have made the requests acting in concert

20 March 2023

Background

The FOI Act provides that the Commissioner shall (i) give reasons for his decisions (section 22(10)), and (ii) publish any decision in relation to any review (section 47(1)). However, section 25(3) also provides that in the performance of his functions under the Act, the Commissioner shall take all reasonable precautions to prevent the disclosure of exempt information or matter that, if it were included in a record, would cause the record to be an exempt record. In the circumstances, and in light of the nature of the specific issues arising in this case, I believe I am constrained from providing the level of detail and reasoning for my findings that I would ordinarily provide.

On 31 August 2020, the applicant submitted a request for certain records to a Government Department (the Department). Following a number of exchanges between the parties, the Department issued a decision on the request on 25 September 2020 (the first decision) wherein it refused the request under section 15(1)(g) of the Act. The decision maker said she considered that the applicant had made the request acting in concert with another individual in furtherance of a well-established pattern of manifestly unreasonable requests.

On 1 October 2020, the applicant sought an internal review of that decision. The parties engaged in further exchanges in relation to the payment of a fee for the application for internal review. I do not propose to repeat the details of those exchanges here as they are not, in my view, relevant to this decision. Nevertheless, it is relevant to note that the exchanges culminated in the Department refusing to accept the application for internal review on the ground that it had not received the required fee within the time required for making an application for review.

The applicant applied to this Office on 18 January 2021 for a review of the first decision. We refused to accept the application for review on the ground that no valid application for internal review had been made. We suggested that the applicant could make a fresh request to the Department in light of the nature of the exchanges between the parties concerning the payment of the fee for internal review. The applicant then submitted a fresh, identical request to the Department on 4 February 2021. On 3 March 2021, the Department refused the request under section 15(1)(g) (the second decision). It said it considered the request to be frivolous as it was identical to the earlier request that had already been refused under section 15(1)(g). The applicant sought an internal review of the second decision, wherein he outlined the practical difficulties he said he had encountered while attempting to pay the internal review fee in respect of the initial request. On 29 March 2021, the Department affirmed its refusal of the request under section 15(1)(g), following which the applicant sought a review by this Office of the Department-�s second 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 Department as described above and to all of the correspondence between this Office and both parties 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 Department was justified in refusing, under section 15(1)(g) of the FOI Act, the applicant-�s request for certain records.

Preliminary Matters

Before I address the substantive issues arising, I would like to make a number of preliminary points. First, as I have outlined above, in its second decision the Department refused the applicant-�s request under section 15(1)(g) on the ground that the request was frivolous as it was identical to the earlier request that had already been refused under section 15(1)(g) in its first decision. It argued that the second request, being identical, could only expect to receive the same decision.

It is important to note that a review by this Office is considered to be -�de novo-�, so it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its conclusion. Accordingly, in light of the nature of the engagements between the parties, the interconnected nature of the two requests, and having regard to the submissions of the parties during the review, I deem it appropriate to consider the wider applicability of section 15(1)(g) to the request that is the subject of this review. I consider this approach to be consistent with what the Courts accept to be the inquisitorial nature of the role of this Office. I also consider this approach to be appropriate, notwithstanding that under section 22(12)(b) of the Act, a decision to refuse to grant a request is presumed not to have been justified unless the FOI body satisfies the Commissioner that the refusal was justified. On this point, I note, in particular, the following comments of the Supreme Court inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors[2020] IESC 57 (-�the Enet Case-�)

-�It is useful to examine in more detail the effect the presumption has in the process. It cannot be said that the language of the Act provides for an inevitable or statutorily mandated outcome should the head of the FOI body fail to justify the refusal to disclose.

The legislation also cannot be said to create a legal burden where it is presumed, unless the

contrary is proved or established, that certain consequences will flow, and it might also be noted that the Commissioner-�s statutory powers are wide and permit the annulment, variation, or affirming of the decision of the head of the FOI body. This means, in turn, that the Commissioner may not approach the review by the application of a formula and must himself or herself adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged which might suggest either disclosure or refusal.

The presumption in s. 22(12) does not identify the means by which the burden is to be met, or any consequence from a failure to do so, and is concerned with the creation of an onus, and a starting point for the review. The express statutory provisions can best be understood in the context of the inquisitorial nature of the statutory role of the Commissioner.-�

During the review, the applicant said the Department appeared to be improperly seeking to turn the review into a review of the first decision that he was informed is closed and that this Office cannot deal with. He said that in its second decision, it had the opportunity to repeat the original arguments but chose not to. He suggested that attempting to do so during this review was an abuse of process that this Office should not tolerate. I disagree. As I have outlined above, I believe that the de novo nature of the review entitles me to consider the applicability of section 15(1)(g) having regard to the totality of the applicant-�s engagements with the Department on the matter.

Secondly, I would like to address the fact that during the review, the applicant requested sight of our communications with the Department and its submissions. As was explained to the applicant, under section 45(6) of the FOI Act the Commissioner has discretion to adopt such procedures for conducting a review as are appropriate in all the circumstances of a case. In all circumstances, this Office aims to ensure that the approach adopted is fair, and seen to be fair, to all the parties concerned. While it is not generally the practice of this Office to exchange submissions between parties to a review, we take care to ensure that the parties are notified of material issues arising for consideration. I am satisfied that all material points raised by the Department and considered by this Office in this case have been notified to the applicant. I am satisfied that the interests of fair procedure did not require the exchange of submissions in this case. 

Analysis and findings

Section 15(1)(g) provides that an FOI body may refuse to grant a request where it 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 who, in the opinion of the head, appear to have made the requests acting in concert.

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 or 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.

This Office has previously identified a number of non-exhaustive factors as relevant in assessing whether a request may be categorised as frivolous or vexatious and we consider that they are equally relevant in determining whether there is evidence of a pattern of manifestly unreasonable requests. The factors include:

• 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?

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).

This Office engaged in several exchanges of correspondence with both the Department and the applicant during the course of the review. I note, in particular, that the Investigating Officer contacted the applicant on 26 January 2023, wherein she outlined precisely three specific matters she deemed to be relevant to her consideration of whether the Department was justified in considering that the applicant appeared to have made the request acting in concert with another individual.

The question of whether individuals appear to be acting in concert is generally not straightforward. I am cognisant of the fact that under section 22(12)(b) of the Act, the onus is on the Department to justify its refusal, and not on the applicant to show that he was not acting in concert. I also note that the Act is silent on the type of factors that might be regarded as relevant when considering this matter. In my view, it would be extremely difficult to attempt to identify a list of factors that one might have regard to in all such cases. Instead, it seems to me that regard must properly be had to the particular circumstances arising in the case in question.

It is important to note that the Act does not require certainty on the part of the FOI body before it can make a finding that requesters are acting in concert. The Act allows an FOI body to refuse a request under section 15(1)(g) where -�the request -� ,in the opinion of the head, -� forms part of a pattern of manifestly unreasonable requests from -� different requesters who,in the opinion of the head,appearto have made the requests acting in concert-� (my emphasis). In other words, the body is entitled to refuse the request if it considers that the requester appears to be acting in concert with another requester. It seems to me that the phrase -�in the opinion of the head, appear-� is an express acknowledgement of the fact that an FOI body may reasonably refuse a request on this basis even if the evidence is circumstantial or incomplete.

Thus, the question arises as to what evidence will suffice in order for an FOI body to reasonably form the opinion that the requesters appear to be acting in concert. The Act is silent as to the standard of proof which should apply in such cases. It seems to me that the standard of proof required in such cases is that of "the balance of probabilities".

In considering whether the applicant appears to be acting in concert with another individual in this case, I agree with the Investigating Officer that the relevant matters to be considered are as she outlined in her email of 26 January 2023, namely;

• the specific and unusual nature of the request made and its similarity to a request made by another individual
• the applicant-�s reluctance to cooperate with the Department during the processing of the request, and
• that according to the Department, it was contacted by the individual with whom the Department considers the applicant may be acting in concert during the course of the review with apparent knowledge of matters arising in the review.

In relation to the first point, I note that the applicant did not specifically comment on the nature of his request in his response to the Investigating Officer-�s email of 26 January 2023, nor did he address the point that his request was very similar to the one described by the Investigating Officer.

He did, however, argue that this Office ought to be releasing and upholding the right to access public documents and that there is a duty to assist the citizen rather than colluding with hindering them at every step in the process. He said officials of the Department should not be refusing access by acting in a dubious or oppressive manner and that officials of the oversight organisations should not be colluding with them. He also said there is a strong public interest in the subject of his request and that his request should be finalised and the documents released.

This Office considers that the fact that there may be a public interest in the release of information sought in a request does not mean that the request cannot be refused under section 15(g) of the Act. The section provides an administrative ground for refusing a request in particular circumstances regardless of any public interest that might be served by granting the request. On the matter of the nature of the request made, in the experience of this Office the applicant-�s request does, indeed, appear to be quite specific and to have some unusual characteristics, particularly in light of the applicant-�s argument that there is a strong public interest in the release of the information sought. It seems to me to seek access to certain records whose release do not, on their face, appear to strongly serve the public interest.

In the particular circumstances of this case, I am satisfied that it is appropriate to regard the specific and somewhat unusual nature of the request made and its similarity to a request made by another individual as evidence in support of a finding that the Department was justified in forming the opinion that the applicant appears to be acting in concert with another individual.

In relation to the second point, I believe it is relevant to note that while the FOI Act demands that public bodies meet very high standards in dealing with requests, the long standing view of this Office is that the legislation also assumes reasonable behaviour on the part of requesters. The applicant argued that he did, indeed, engage with the Department. Having carefully considered the correspondence between the parties during the processing of both requests and having regard to the submissions of both parties, I am satisfied that the applicant essentially refused to cooperate with the Department-�s efforts to establish if there were grounds for refusing the request on the basis that he was acting in concert with another individual. Rather than engage with the issue, the applicant sought to challenge the Department-�s authority to raise questions about his identity and his motive for making the first request.

I should add that I note the applicant-�s comment in his email of 6 February 2023 to this Office that he informed the Department he was acting on his own. I have examined the correspondence provided to this Office by the Department and cannot identify where he did so. It seems to me that it was only when specifically asked by this Office that he said he was not acting in concert.

In the circumstances, I am satisfied that it is appropriate to regard the fact that the applicant did not cooperate with the Department-�s reasonable enquiries to establish if he was acting in concert with another individual as further evidence in support of a finding that the Department was justified in forming the opinion that the applicant appears to be acting in concert with another individual.

In relation to the third point, namely, that the individual with whom the Department considers the applicant appears to be acting in concert contacted the Department with apparent knowledge of the matters arising in the review, I am satisfied that it is appropriate to regard the contact in question as further evidence in support of a finding that the Department was justified in forming the opinion that the applicant appears to be acting in concert with another individual.

Therefore, having regard my findings in respect of the three matters I have outlined above as relevant to the question of whether the applicant appears to be acting in concert with another individual, I find that the Department was, indeed, justified in forming the opinion that the applicant appears to have made the request acting in concert with another individual in this case.

However, that is not the end of the matter as I must also consider whether the Department was justified in concluding that the request forms part of a pattern of manifestly unreasonable requests in accordance with 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).

In considering whether a pattern of manifestly unreasonable requests exists of which the applicant-�s request may form part, it is apparent from the Department-�s submissions that it had regard to its long history of engagements with the individual with whom it considers the applicant appears to be acting in concert in relation to the matter that is the subject of the applicant-�s request. While I believe that I am constrained by section 25(3) of the Act from giving detailed reasons for my findings on this point, I am satisfied, from the submissions made, that the Department reasonably formed the opinion that the relevant previous requests form part of a pattern of manifestly unreasonable requests. I am also satisfied, given the subject matter of the applicant-�s request and my findings that the Department was justified in forming the opinion that the applicant appears to have made the request acting in concert with another individual in this case, that his request forms part of that pattern.

In conclusion, therefore, I find that the Department was justified in refusing, under section 15(1)(g) of the Act, the applicant-�s request for certain records on the ground that the request forms part of a pattern of manifestly unreasonable requests from different requesters who appear to have made the requests acting in concert.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse, under section 15(1)(g) of the Act, the applicant-�s request for certain records on the ground that the request forms part of a pattern of manifestly unreasonable requests from different requesters who appear to have made the requests acting in concert.

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