Whether TUSLA was justified in refusing access to records relating to its involvement in a tribunal of inquiry under sections 15(1)(b), 15(1)(c) and 15(1)(g) of the FOI Act

16 December 2020

Background

Given the nature of the issues arising in this case, I consider it necessary to set out, in some detail, the main engagements between the applicant and TUSLA in connection with the processing of the applicant’s FOI request.

On 27 August 2019, TUSLA received a request from the applicant for all records regarding a TUSLA staff member and events relating to two named individuals. While the applicant said she first submitted the request on 8 August 2019, TUSLA said it did not receive that email. She subsequently sought to pursue with TUSLA the issue of the missing email. On 30 August 2019, TUSLA wrote to the applicant and informed her that the wording of the request it received on 27 September 2019 would not enable the records requested to be identified by the taking of reasonable steps. It provided a link to the FOI section of its website for further guidance. It also drew her attention to certain of the provisions of section 37 of the FOI Act which allows for the refusal of personal information relating to third parties.

On the same day, the applicant emailed TUSLA.  She noted that her request had been refused on the ground that it was not sufficiently clear to identify the documents sought. She submitted a revised request for all documents in connection with the involvement of a named staff member regarding matters leading up to, during and after his appearance at the Disclosures Tribunal in matters relating to two named individuals. On 2 September 2019, TUSLA wrote to the applicant and explained that it had not refused the request but had informed her that the request did not meet the requirements of section 12(1)(b) to be considered a valid request. It said the intention of the letter of 30 August 2019 was to provide assistance to enable the applicant to submit a revised request that would meet the requirements of the Act. It also informed her that the revised wording would still be deemed an invalid request and asked her to give the matter further consideration. It suggested that to submit a valid request, it is necessary to identify the precise records sought.

By letter dated 3 September 2019, the applicant asked TUSLA to confirm that the revised request had been refused under section 12(1) and to explain why. It appears she sent a separate email to TUSLA on the same date seeking an index of all records held on the staff member in question and the Disclosures Tribunal to allow her to identify the records she required.

On 4 September 2019, TUSLA explained that it did not issue a refusal in response to the refined request but had, instead, considered the refined request not to be a valid request. It also explained that it was not required to create a record for the purposes of an FOI request and that it was not in a position to provide the index sought.

On 9 September 2019, the applicant again wrote to TUSLA. She said she noted from TUSLA’s letter of 4 September 2019 that it had confirmed the refusal of her request as invalid under section 12(1), notwithstanding the fact that TUSLA had said it did not refuse the request. She sought a review of what she deemed to be a refusal of her refined request. She said she would forward the required fee by post. She also said she had not asked for an index of records under the FOI Act.

On 10 September 2019, TUSLA informed the applicant that it was not possible to process the request for an internal review as it had not issued a decision on the request. It said it had asked the applicant to submit an amended request as the wording of the request would not allow the records to be identified by the taking of reasonable steps. It also drew her attention to section 15(1)(c) of the Act which allows for the refusal of a request where processing the request would cause an unreasonable and substantial interference with, or disruption of, the work of the body. It said it was anxious to process the request and asked her to indicate if she wanted the request as worded processed or if she wished to consider the matter further.

On 12 September 2019, TUSLA returned the postal order the applicant had submitted as the fee for applying for internal review and sought a response to its letter of 10 September 2019.

In an email of 13 September 2019, the applicant summarised her understanding of the engagements between the parties to date. She also argued that her request for review had been refused under section 15(1)(c). She further argued that the documents sought must be stored together given their nature. She argued that TUSLA had not acted reasonably to date in relation to the request and she rejected the assertion that TUSLA was anxious to process her request. In a letter dated 16 September 2019, she informed TUSLA that she had sent the fee back to TUSLA and that she had applied to this Office for review.

In response to the applicant’s email of 13 September 2019, TUSLA sent a further email on 16 September 2019, wherein it noted that there may be some confusion in relation to the provisions of the Act. It said it would like to offer assistance to ensure that there is clear understanding on both the legislation and the content of the applicant’s request. It said it would hold off referring the matter to its decision maker for two days to allow the applicant an opportunity to discuss the matter by phone. It provided relevant contact details. In response, the applicant said that the matter was now with the Commissioner.

Following communications between this Office and TUSLA, this Office informed the applicant by telephone on 17 September 2019 that her application for review was premature as TUSLA had not issued a decision on the request. In an email on the same day, the applicant sought to challenge this Office’s position on the matter. This Office closed the case on 18 September 2019 as a valid application for internal review had not been made.

On 18 September 2019, following a further exchange between the parties, the applicant submitted suggested revised wording for her request. On 19 September, 2019, she confirmed the revised wording of her request as “ … all documents … in connection with and touching upon the involvement regarding matters leading up to, during and after the Disclosures Tribunal in matters relating to [two named third parties], which she subsequently clarified as “involvement” pertaining to TUSLA.

On 23 September 2019, the applicant further clarified that the documents sought are not those produced at the Disclosures Tribunal hearings. She said she was seeking

• TUSLA and HSE “input documents” of a file of the children of one of the two named parties regarding a referral of October 2013
• Internal briefing documents/reports, memos and memoranda regarding specific referrals, to include “governance”;
• The internal schedule of documents TUSLA prepared for the Tribunal; and
• A letter dated 10 October 2013 from a named Garda Superintendent.

TUSLA responded to this email and stated that it was no longer in a position to consider further revisions to the scope of the request. On 26 September 2019, TUSLA issued its decision on the request. The decision maker stated that she had considered the revised request submitted on 19 September with the clarification that “involvement” pertains to TUSLA. The decision maker refused the request under sections 15(1)(b), 15(1)(c) and 15(1)(g) of the FOI Act.

On 1 October 2019, the applicant sought an internal review of TUSLA’s decision. Among other things, she argued that TUSLA had not provided appropriate assistance, that she had amended her request on a number of occasions in an attempt to cooperate with TUSLA, and that TUSLA had failed to take into account her email of 23 September 2019 wherein she identified the precise records sought.

On 24 October 2019, TUSLA affirmed its original decision. On 31 October 2019, the applicant sought a review by this Office of that decision. During the course of this review, Ms Whelan of this Office invited submissions from TUSLA and provided details of those submissions to the applicant. The applicant made further comments on those submissions.

I have now decided to bring this case to a close by way of a formal, binding decision. In conducting the review, I have had regard to correspondence between the applicant and TUSLA as outlined above and to communications between this Office and both the applicant and TUSLA on the matter.

Scope of the Review

This review is solely concerned with whether TUSLA was justified in its decision to refuse the applicant’s request for records relating to its involvement in a tribunal of inquiry under sections 15(1)(b), 15(1)(c) and 15(1)(g) of the FOI Act. 

Preliminary Matters

Before I address the substantive issues arising, I wish to address a number of preliminary matters. Firstly, it is important to note that a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision.

Secondly, the applicant has made a number of allegations and complaints about TUSLA in her submissions to this Office. As has previously been explained to the applicant, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. As such, while it is clear that the applicant is dissatisfied with the manner in which TUSLA dealt with her, this Office has no role in examining the appropriateness of those actions. This review has been conducted under section 22(2), which means that it is concerned solely with a review of the decision taken by TUSLA on the applicant’s request.

Finally, I note that the applicant requested that she be provided with copies of TUSLA's submissions during the course of the review. As Ms Whelan has previously explained to the applicant, the policy of this Office is that submissions will not generally be exchanged between parties to a review but the parties should be notified of material issues arising for consideration. Material issues include matters such as 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. 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.

Analysis and Findings

Having regard to the submissions made by TUSLA during the course of this review, it is apparent to me that section 15(1)(g) is of most relevance in this case. Accordingly, I will consider the applicability of that provision on the first instance.

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 example, 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.

This Office considers that a request may be regarded as frivolous or vexatious where, among other things, it has been made in bad faith or it forms part of a pattern of conduct that amounts to an abuse of process or an abuse of the right of access. This Office deems it appropriate to consider the request in the context of (i) other requests made to the public body and, (ii) the requester’s dealings with the public body concerned. On this point, it is 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.

Where a requester's pattern of behaviour involves an abuse of process, the fact that he or she is unwilling to co-operate with the FOI body may be evidence of bad faith on the part of the requester. A request could also be made in bad faith without any pattern of behaviour being present.

This Office is also satisfied 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 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". 

In its submission to this Office, TUSLA provided details of its considerable dealings with the applicant in the course of this and a previous request. While I do not propose to repeat all interactions between TUSLA and the applicant, TUSLA’s position is, in essence, that the applicant has demonstrated an unwillingness to cooperate and a pattern of conduct that amounts to an abuse of the right of access.

TUSLA said that the applicant made a previous FOI request to the HSE in July 2018 that was forwarded to TUSLA for processing. It said the applicant was unsatisfied with the manner in which TUSLA processed that request. She took issue in particular with being contacted with a view to narrowing the scope of her request, as well as what TUSLA regarded as her failure to appreciate the complexity of obtaining legacy records from two separate organisations.

What followed was extensive correspondence spanning two and a half years. The applicant sent over 120 letters and emails to TUSLA and the Department of Children and Youth Affairs regarding her grievances with TUSLA. While a portion of this correspondence comprised the parties’ attempts to agree the scope of the two requests, the applicant generated considerable correspondence relating to complaints on TUSLA’s handling of her FOI request, the backdating of letters regarding the matter by the Interim CEO and the imposition of search and retrieval fees, among other matters.

TUSLA’s submission outlined that its attempts to assist the requester were resisted at each turn and instead resulted in the escalation of her complaints to the Board of TUSLA and the then Minister for Children and Youth Affairs. In January 2019, the applicant made serious allegations against another senior staff member of TUSLA to the Board and to the Department of Children and Youth Affairs. The applicant asked for the matter to be investigated.

TUSLA said the applicant objected to her complaints being dealt with under ‘Tellus,’ TUSLA’s policy and procedure for feedback. Correspondence on the applicant’s complaints continued up to 15 October 2019, when TUSLA provided an update on all matters and advised the applicant that as she did not wish for her complaint to be dealt with through Tellus, that the complaint was now closed. The applicant responded stating that she wished for her complaint regarding the dating of letters by the Interim CEO be brought to the attention of the newly appointed CEO and that it would be appropriate for this complaint to be dealt with through Tellus as it related to matters which could be classed as service. She advised that she would continue to canvass the Minister in relation to the actions of the staff member in dealing with her FOI request.

TUSLA also outlined its dealings with the applicant in relation to the current request, as outlined in the background section above. TUSLA’s position is that the applicant resisted its attempts to assist her in amending her request and demonstrated an unwillingness to cooperate in order to allow TUSLA to process her request. TUSLA also suggested that the applicant’s insistence that her request had been refused despite the fact that no decision had issued and her failure to remove the names of third parties from the request were examples of her resisting assistance.

TUSLA also suggested that the applicant was attempting to create opportunities for complaints, for example, by insisting that TUSLA retain an unendorsed postal order it had issued to her and then complaining that TUSLA had cashed the postal order in what she claimed amounted to fraudulence on TUSLA’s part. TUSLA stated that dealing with the applicant’s requests, complaints and other correspondence had impacted heavily on the workload of a number of units within TUSLA. 

In her submissions to this Office, the applicant argued that she had made both requests to TUSLA in good faith. She stated her view that her initial request had not been dealt with appropriately and it was on this basis that she made her complaints. The essence of the applicant’s arguments is that she made both requests in the interests of the protection of women and children. She stated that she had no personal grievance with TUSLA or its staff members and that her complaints were well founded. She argued that she had made honest attempts to revise the current request and that she felt that TUSLA’s engagement with her was obstructive.

The applicant pointed to the lengthy correspondence between herself and TUSLA as evidence that she was, at all times, willing to engage with TUSLA in order to have her requests processed. She stated that TUSLA had made the processing of her request inordinately difficult. She pointed to the fact that she had only made one prior request to TUSLA and that her previous request and the current request were not related, as they concerned different issues.

It seems to me that this is not a case that contains the standard features one might expect to find in a request that is deemed to be vexatious. For example, the applicant did not make an excessive number of requests to TUSLA, nor is it apparent that she is using the FOI process in an effort to pursue an ongoing or long-running grievance, which has been a feature of many previous cases dealt with by this Office where the request was found to be vexatious.

However, what is apparent to me is that the applicant has taken a quite adversarial approach in her dealings with TUSLA and that such an approach was at the heart of the difficulties and protracted correspondence that followed. Indeed, she took that same adversarial approach in her initial dealings with this Office when she sought to submit an application for review that this Office deemed to be premature. Instead of accepting this Office’s position on the matter, she sought to challenge that position. Furthermore, during the course of this review, I note that she sought to have her case assigned to a different Senior Investigator.

In the normal course, I would fully expect that the issues arising concerning the apparent lack of specificity of the request first submitted to TUSLA on 27 September 2019 would generally be readily resolved in a telephone conversation between the parties or in an email exchange of, at most, one or two emails.

The request in this case was for “all records regarding Mr [First name] and the [two named individuals] events”. (It is noteworthy that she also asked, at the outset, that the FOI liaison officer who was involved in the processing of her earlier request would not be involved in the processing of this request). On receipt of the request, TUSLA explained that the wording would not enable the records requested to be identified by the taking of reasonable steps. It provided a link to the FOI section of its website for further guidance. It also explained that if she wished to submit a revised request, she should be aware of the provisions of section 37 of the FOI Act which allows for the refusal of personal information relating to third parties.

In my view, this was an entirely reasonable approach to take. The wording of the request was, at best, vague. TUSLA reasonably referred her to that part of its website that contains advice for persons wishing to make requests and, given that the applicant had identified named individuals in her request, it reasonably drew her attention to the provisions of section 37. I should say that I am not surprised that TUSLA did not initially seek to engage with the applicant by telephone, given the manner in which its previous engagements with the applicant on the 2018 FOI request escalated.

What followed was not, in my view, reasonable. I fully accept that the applicant at first engaged with TUSLA by submitting a revised request on 30 August 2019, although I note that she described her originally worded request as having been refused under section 12(1)(b). While this description of the request as having been refused may have been a simple misinterpretation of TUSLA’s response, she continued to regard it as a formal refusal under the Act even after TUSLA explained to her that this was not the case.

TUSLA’s response of 2 September 2019, wherein it informed the applicant that the revised wording would still be deemed an invalid request and asked her to give the matter further consideration, triggered an extensive chain of email correspondence that does not, in my view, constitute reasonable behaviour on the part of a requester. A reasonable response would have been to have regard to the advice given by TUSLA and to seek to submit a sufficiently specific request to allow for the identification of the records sought by the taking of reasonable steps. Alternatively, the applicant could have informed TUSLA that she was not prepared to engage on refining the request and that she required a formal decision on the request as submitted.

Instead, the applicant sought to challenge TUSLA’s position on a number of issues, including the missing email of 8 August 2019, the alleged refusal of the request under section 12(1)(b), the index of records sought, the premature application for an internal review of the alleged refusal of the request, and the handling of the fee for internal review. While I accept that she eventually submitted a reworded request on 19 September 2019, this was done only after an extensive exchange of correspondence on those issues.

It is clear that the decision to refuse the request under section 15(1)(g) was influenced not only by the applicant’s behaviour during the processing of the request, but by the manner in which she engaged with TUSLA on the previous request.  In my view, the applicant was essentially repeating the unreasonable behaviour she had apparently shown during the processing of the first request. While I accept that the applicant made both requests in good faith, I do not accept her other assertions that TUSLA’s engagements with her were obstructive or that she was, at all times, willing to engage with TUSLA in order to have her requests processed. Furthermore, it seems to me that the applicant has had no regard to the significant burden that was placed on TUSLA by having to engage with her in the manner outlined.

FOI bodies are required to go through the rigorous processing requirements of the FOI Act. However, the Commissioner also takes the view that requesters have a responsibility to act reasonably in relation to the processing of their requests by FOI bodies. Having reviewed both TUSLA’s and the applicant’s submissions in this case, as well as the chronology of correspondence between TUSLA and the applicant leading up to and following this request, it is my view that the applicant’s interactions with TUSLA form part of a pattern of conduct that amounts to an abuse of process or an abuse of the right of access.

In the circumstances, I find that TUSLA was justified in deciding to refuse the request at issue under section 15(1)(g) on the ground that it was vexatious. Having found section 15(1)(g) to apply, I do not consider it necessary to examine the other exemptions cited in this case.

Nevertheless, for the benefit of the applicant, I would say that it is open to her to submit a fresh request for the records she was seeking in this case. Provided she does not repeat the pattern of conduct shown in the way she engaged with TUSLA in this case and during the previous request, I see no reason why TUSLA would not process a fresh request in good faith. I would add, however, that the requirements of section 12(1)(b) remain to be met. If a new request is made, the applicant must provide sufficient particulars to enable the records sought to be identified by the taking of reasonable steps.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of TUSLA to refuse the request 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