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Mr Q and Department of Foreign Affairs and Trade (FOI Act 2014)

Case Number: 160308

Whether the Department was justified in refusing the applicant's request for certain records relating to a grant scheme paid to members of a roster of election observers under section 15(1)(g) of the FOI Act on the ground that the request was frivolous or vexatious

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Note: This decision was appealed to the High Court in December 2016

Background

The Department administers a roster of observers for international election observation missions that are organised, in the main, by the Organisation for Security and Cooperation in Europe (OSCE) and the EU. Observers are paid expenses to cover their costs in line with regulations and advisories given by the OSCE and the EU. Members of the election roster who are nominated and undertake missions on behalf of the Department receive a grant of €600. The grant is paid once in each calendar year, regardless of how many missions members observe in that year. On 28 May 2016, the applicant sought access to all records concerning the grant scheme, including records of its establishment, rules and regulations, precedent cases including refusals of payment, full details of payment of the grant to Core Team Mission consultants and whether any steps had been made to recover grants paid.

On 27 June 2016, the Department refused his request under section 15(1)(g) of the Act. On 3 July 2016, the applicant sought an internal review of that decision. On 26 July 2016, the Department affirmed its original decision on the ground that his request was frivolous and vexatious. The applicant sought a review by this Office of the Department's decision on 26 July 2016.

Both the applicant and the Department were invited to make submissions during the course of the review. Both parties made detailed submissions. The applicant also engaged in further correspondence with Ms Murdiff of this Office on matters relating to the review. Having regard to that correspondence, I consider that the review should now be finalised by way of a formal, binding decision. In conducting my review I have had regard to the submissions of the parties and to correspondence between the Department and the applicant, and the applicant and this Office on the matter.

Scope of Review

This review is solely concerned with whether the Department was justified in its decision to refuse the applicant's request under section 15(1)(g) of the FOI Act on the ground that it is frivolous and vexatious.

Preliminary Matters

During the course of the review, the applicant sought a copy of the Department's submissions to this Office. The policy of this Office in relation to the treatment of submissions is set out in its procedure manual which is available at www.oic.ie. The policy provides that, in general, submissions will not be exchanged between parties to a review but that the parties should be notified of material issues arising for consideration. It describes material issues as including applicable exemptions not previously raised, pertinent search details not previously disclosed to the applicant, and new court judgments which may have a bearing on the outcome of the review.

The applicant has been informed on a number of occasions, including in the course of previous reviews undertaken, that the policy of this Office is that submissions will not generally be exchanged between parties to a review. Under section 45(6) of the FOI Act, the Commissioner has discretion to adopt such procedures 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.
In this case, not only did the applicant make a very detailed submission in response to the Department's refusal of his request under section 15(1)(g), but Ms Murdiff of this Office also provided him with a summary of the main relevant matters raised by the Department in its submissions and invited him to make a further submission on the matter. The applicant argues that he has been denied fair procedure as a result of this Office's refusal to provide him with a copy of the Department's submissions. Having regard to the manner in which this Office progressed the review as described above, I disagree. I also note the applicant's contention that the High Court has already ruled that not providing submissions is an invalid unfair procedure in the case of Kelly v Information Commissioner (2006 No. 40 MCA). This is incorrect as the High Court made no such ruling. Rather, the case was remitted back to the Commissioner by consent in light of the circumstances arising in that particular case.

The applicant may care to note that the High Court has previously addressed arguments concerning the exchange of submissions during reviews, albeit in relation to the exchange of submissions received from other relevant parties to a review. In the case of National Maternity Hospital v. Information Commissioner [2007] IEHC 113, Quirke J. commented as follows:

"The review required by the revisions of s. 34 of the Act of 1997 was intended to be inquisitorial rather than adversarial in nature. The procedures to be adopted by the Commissioner in respect of such reviews are entirely within her discretion provided that they do not offend recognised principles of natural and constitutional justice. The procedures which she adopted in the review under appeal permitted all of the parties with an interest in the review to make full and detailed written submissions on every relevant aspect which affected their respective interests. Each of the parties who participated in the review was provided with full and equal access to the Commissioner and to her officials.

I know of no principle of natural or constitutional law or justice which confers upon parties who make submissions to a decision making body the right to respond to the submissions made by every other party who participates in the process. The review undertaken by the Commissioner was a statutory process which expressly envisaged and permitted the adoption of informal procedures."

I also note that the applicant sought an oral hearing with the Department where he could cross examine the Department's representatives. I am satisfied such a measure is neither necessary nor appropriate and that by refusing such a request, the applicant has not been denied fair procedure. On this point, I am also cognisant of the comments of Haughton J. in Martin v The Data Protection Commissioner [2016] IEHC 479 on the question of whether the Data Protection Commissioner should have held an oral hearing in the course of her investigation of a complaint. The Data Protection Acts provide that the Commissioner may investigate, or cause to be investigated, whether any of the provisions of the Act have been, are being or are likely to be contravened and provide that the Commissioner may carry out or cause to be carried out such investigations as he or she considers appropriate in order to ensure compliance with the provisions of the Act and to identify any contravention thereof. Haughton J. stated as follows:

"I have come to the conclusion that neither the Directive nor the Acts, expressly or by implication, require or empower the respondent to conduct an oral hearing in relation to complaints made under the Acts".
Having regard to the provisions of section 45(6) of the FOI Act, I am satisfied that this Office is not required to conduct an oral hearing as sought.

Finally, I note that the applicant referred to Ms Murdiff's email of 11 October 2016, wherein she informed him of the main points set out in the Department's submission, as her preliminary decision. I wish to make it clear that her email was not a preliminary decision. Rather, she informed the applicant of the recommendation she intended to make to the Commissioner having considered the submissions received from both parties. Responsibility for making a binding decision following a review rests with the Commissioner or the appropriate Senior Investigator who has delegated authority to make such decisions.

Analysis and Findings

Section 15(1)(g) of the FOI Act provides that an FOI body may refuse 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.

This Office has previously set out a number of non-exhaustive factors considered to be relevant in assessing whether a request may be categorised as frivolous or vexatious and considers that these factors are equally relevant in determining whether or not 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?

This Office considers that it is entitled, by virtue of section 13(4) of the FOI Act, to take into account the motive of a requester when considering whether a request is frivolous or vexatious.

In the case of Kelly v the Information Commissioner [2014] IEHC 479, 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".

In his detailed 23 page submission of 19 August 2016, the applicant cited various FOI determinations from other jurisdictions dealing with the matter of vexatious requests in support of his own views as to how the provision should be interpreted and applied. I see nothing in his submission which suggests that I should depart from the approach taken by this Office to date. Therefore, for the purpose of conducting this review, I have adopted the approach as previously set out.

As I have outlined above, the FOI request which is the subject of this review relates to the grant paid to members of the roster of observers for international election observation missions who are nominated and undertake missions on behalf of the Department. In its submission to this Office, the Department stated that following a review of the previous roster which had been in operation for a number of years, and of which the applicant had been a member, it was decided in 2012 to issue a call for new roster members to strengthen the roster and bring it more into line with changing international priorities. It stated that in early 2013, following the publication of a call seeking election observer applications on the Irish Aid website, 294 applications were received, of which 263 were deemed eligible to be independently appraised. Arising from this, the 200 individuals who achieved the highest scores were selected to serve on the new roster and a reserve panel of the next ten highest scoring individuals was also established.

The Department stated that the applicant's application was assessed in the same way as all other applicants and that he was not appointed to the roster. It stated that the basis of the applicant's subsequent appeals relate to the fact that in the preliminary announcement, there had been an indication that applicants would be interviewed prior to appointment and that if he had known there was to be no interview, he would have submitted additional information in his application.

The Department added that since 2013, the applicant has submitted numerous requests for reviews and additional information through various channels directly to officials and also to the Minister and the Minister of State's Office. It stated that he has been formally and repeatedly informed that he is not a member of the election roster and despite this, he has submitted six applications in 2014 and 2015 to officials and the Minister of State's Office requesting that he be nominated as an election observer.

According to the Department, the applicant has made 11 FOI requests to it since 2013 relating to the roster, including the request under review. Essentially, the Department is of the view that the requests submitted by the applicant, including the one currently under review, form part of a long-running and unsuccessful pursuit of his grievance concerning his unsuccessful application to be part of the roster in 2013. It argued that there is evidence of a clear and repeated pattern of conduct and communications relating to the roster, which has passed the stage of reasonableness and which the Department now considers to be vexatious. It stated that the pattern of conduct included the following:

Applying to attend a Training Course for the members of the new roster in 2013, despite not being a member
Making six requests to be nominated on missions in 2014-2015, despite not being on the official roster
Applying for statements of reasons under section 10 of the FOI Act when the Department informed him that he was not eligible to be nominated to the missions as he was not on the official roster
Submitting 11 FOI requests since 2013 relating to the roster, including requests for records containing the personal information of third parties, such as individual application forms
Making applications for internal review of the Department's decisions and applications for review to this Office where the Commissioner upheld the Department's decisions in most cases
Making a complaint to the Ombudsman
Making requests to the Minister of State to meet to discuss various issues relating to the roster
Submitting Parliamentary Questions (PQs) relating to the roster. The Department stated that 20 were submitted, many of which it believes were raised on the applicant's behalf, and in some cases mirror his FOI requests
Making data protection requests to the Department relating to the roster
Enquiring whether the Department would fund participation on a post graduate election observation course
Travelling to Sri Lanka and acting as an unofficial election observer in 2015 and then seeking to be paid the grant at issue
Appealing the decision not to pay him the grant
Raising issues with the Department in relation to the payment of the grant to a specified election observer when it wasn't paid to him and meeting with Department officials to discuss this issue
Making an FOI request for access to records relating to the payment and administration of the grant

The Department stated that the current request under review relates to a particular member of the roster who was nominated as an observer to the Sri Lankan mission and paid the €600 grant. This member was also selected by the European Commission as a Core Team Member, which I understand attracts a fee and allowances, which are paid by the Commission. The Department stated that the applicant raised issues relating to the payment of the grant to this member of the roster and met with Department officials to clarify. It contended that his submission of an FOI request relating to the same issue, when it had considered that the matter had been adequately dealt with at the meeting, demonstrated an unwillingness on the part of the applicant to cooperate with the Department.

The Department contended that there is a discernible pattern to the applicant's conduct. It considered that the repetition involved in his FOI requests, PQs and applications to be sent on missions as if he were a member of the roster, as well as his requests for details relating to roster members has, "by any reasonable measure", reached the point of being considered vexatious. Essentially, the Department has contended that the applicant has engaged in a pattern of conduct which constitutes an abuse of process.

The applicant is of the view that the Department was not justified in its refusal of his request on the basis that it had not demonstrated that his requests had posed a significant administrative burden; nor had it claimed that he had acted in bad faith or had acted for a reason other than access. He stated that it was not vexatious to seek information and that he sought access to the information at issue due to his concerns that grants are being paid in a manner contrary to the public interest. While the applicant denied that his request solely related to this particular member, he referred to the person in question in his submission to this Office and stated that it was a matter of public interest whether grants were paid in line with specific criteria and reclaimed if paid in error.

In essence, the applicant argued that if a request was valid on its face, it could not be vexatious. He argued that he had a genuine reason for seeking the information in question and contended that while FOI requests were frequently driven by a particular agenda or vested interest, that did not make them vexatious per se.

Conclusion
I fully accept that the applicant may be in a position to identify a particular public interest in seeking access to information relating to the payment of grants to members of the election roster. I also accept that the fact that requests may be driven by a particular agenda does not, of itself, make such requests vexatious. However, this does not mean that the request cannot be deemed frivolous or vexatious. I am satisfied that it is entirely appropriate to have regard to the broader issue of the manner in which a requester has engaged with the public body to date on a particular matter.

While the FOI Act demands that FOI bodies meet very high standards in dealing with FOI requests, this Office takes the view that the Act assumes reasonable behaviour on the part of requesters. It seems to me that since he was unsuccessful in his application for appointment to the election observation roster in 2013, the applicant has pursued all available avenues to challenge this decision, including through making FOI requests. In fact, I note from an email he sent to the Department on 12 June 2016, a copy of which was provided to this Office for the purposes of this review, that he stated that it was his intention to "pursue a resolution" of the non-payment of the grant and his ongoing exclusion from nominations for election observation opportunities by the Department "by using various fora" and "ultimately if necessary by litigation".

I am satisfied that the applicant's request to the Department was directly related to his ongoing grievance relating to his exclusion from the roster. Given the level of attention that his complaints and queries have received, the information which the Department has made available to him, and the nature of the request under review, it seems to me that submitting FOI requests has become an integral part of the applicant's strategy in pursuing this matter with the Department. Having considered the nature of the current application, against the background of the applicant's ongoing prolonged interaction with the Department, I find that the purpose of his request is directed at an objective unrelated to the right of access to records, i.e. it is being used tactically for the purpose of pursuing the dispute. In the circumstances, it is my view that a pattern of conduct exists relating to the use of FOI which suggests an abuse of the FOI process with no regard for the burden which the pursuit of his grievance has placed on the Department. Accordingly, I am satisfied that the Department was justified in deciding to refuse the request at issue on the ground that it is vexatious.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department.

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