Whether the HSE was justified in refusing access to records of searches it carried out in relation to a previous FOI request from the applicant under section 15(1)(g) on the ground that the applicant’s request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests

1 September 2020

Background

This case has its background in a previous FOI request made by the applicant, which was reviewed by this Office. In that previous request, dated 7 April 2017, the applicant sought records concerning a complaint about her which was lodged on 11 January 2017 with a named Assistant Director of Nursing. The HSE’s position was that no formal complaint had been lodged but rather a verbal observation was made.

The question arising for this Office was whether the HSE was justified in deciding that no record containing details of that complaint/observation existed or could be found. During the course of the review, the HSE provided this Office with details of the searches it had undertaken in an effort to locate relevant records. Among other things, it said that in an effort to locate the records sought by the applicant, it consulted with relevant staff members, who were asked to provide any records related to the request. Having regard to the details provided by the HSE, and in the absence of evidence to suggest that other relevant records should exist, I found that the HSE had taken all reasonable steps to locate the records sought by the applicant. I issued my decision on the matter on 4 January 2018.

Some time afterwards, however, a record of the complaint/observation was located. On 15 July 2019, the applicant submitted a fresh request to the HSE, for details of the searches conducted to locate the records she sought in her previous FOI request. She also asked for lists of the staff who were asked to provide records, should they exist.

On 9 September 2019, having received no decision from the HSE, the applicant sought an internal review of the HSE’s deemed refusal of her request. On 18 October 2019, the HSE refused the applicant’s request under section 15(1)(g) of the FOI Act which provides for the refusal of frivolous or vexatious requests. It also said it would not be responding to further similar FOI requests from the applicant. On 30 January 2020, the applicant sought a review by this Office of the HSE’s 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 communications between the HSE and the applicant as set out above and to the communications between this Office and both the HSE and the applicant on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is solely concerned with whether the HSE was justified in its decision to refuse the applicant’s request for details of the searches it undertook on foot of her previous request for records relating to a complaint/observation made about her under section 15(1)(g) of the Act.

Analysis and Findings

Section 15(1)(g) provides for the refusal of a request where the FOI body considers that the request is frivolous or vexatious, or forms part of a pattern of manifestly unreasonable requests. The section identifies three characteristics of a request which may lead to a decision to refuse a request; namely that the request is frivolous, vexatious, or forms part of a pattern of manifestly unreasonable requests.  While these are three separate characteristics, 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 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.  We have previously set out a number of non-exhaustive factors considered 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? Alternatively, are the requests repetitive in character or are they used to revisit an issue that has previously been addressed?
• 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 sequencing of the requests - does the volume of requests or appeals increase following the initiation of court proceedings by the institution or the occurrence of some other related event?
• the intent of the requester - is the requester's aim to harass the public body?

It is important to note that this list of factors is non-exhaustive and that there is no requirement for all of the factors to apply for a request to be considered frivolous or vexatious.

In response to a request from this Office for submissions in support of its reliance on section 15(1)(g) for refusing the request, the HSE said that it was satisfied that its position was accurately captured in the Internal Review decision which issued to the applicant on 18 October 2019 and that it had no further submission to make.

In its internal review decision, the HSE stated that it had responded to a number of requests from the applicant over the last few years and has also been engaged in HR processes during the same period. The internal reviewer said it was her belief that the applicant was using the FOI Act for a purpose for which it was not intended and that the applicant was now behaving in a vexatious manner.

In relation to the number of requests made, the internal reviewer said the applicant made numerous requests over the last number of years and that they were dealt with by the HSE as best they could. She said the applicant was advised on a number of occasions that the relevant Hospital no longer holds her file but that she persists in seeking records. She said the applicant’s last request was reviewed by this Office and that the applicant was advised that no further records could be found. She said the most recent request seeks to reopen that matter and that this was not an appropriate use of the Act.

The internal reviewer added that the applicant’s requests in the past have been very detailed and repeated requests for the same or similar records that the HSE has done its best to respond to.  She said the applicant was now seeking details of a matter that had already been dealt with and closed by this Office. She stated her view that the applicant’s requests are part of a broader grievance she has with the Hospital and that she is using the FOI Act to pursue this grievance and that the requests are intended to cause difficulties for the Hospital. She concluded that the applicant’s behaviour was vexatious.

In her submissions to this Office, the applicant provided a copy of the record which came to light after I had issued my decision on her previous FOI request. She said the record was produced by the HSE in a submission to the Labour Court on 20 March 2019. The record in question is an extract from a diary entry dated 11 January 2017, which notes a report voicing concerns about the applicant’s behaviour. It is not clear from the information available to this Office whether the HSE accepts that this record is in fact the record of complaint which the applicant sought in her previous FOI request. Nevertheless, I am satisfied that it came within the scope of that request.

The refusal of a request under section 15(1)(g) is not something that should be undertaken lightly. While the HSE’s internal review decision provides some context to its reasoning for refusing the applicant’s request as vexatious, I do not consider that it provides sufficient grounds to me to find that the applicant’s request is vexatious. While the HSE’s decision refers to numerous, detailed and repeated requests from the applicant, no details about these requests were provided by the HSE to this Office when it was invited to make submissions. I accept that there has been significant engagement between the HSE and the applicant over the last number of years and that a strained relationship appears to exist between the parties. The fact that the applicant may, indeed, be pursuing a grievance, does not, of itself, mean that her request is vexatious. 

The HSE suggests that the latest request relates to a matter that was already dealt with and closed by this Office. It is important to note that my finding in the earlier review that the HSE had carried out all reasonable steps to locate relevant records was based on the information provided by the HSE in its submissions to this Office. I also had regard to the fact that no evidence had been presented to suggest that the record sought by the applicant ever existed. However, the record sought by the applicant was since located.

With respect, I think it is entirely reasonable for the applicant to question what specific searches were carried out to locate records of relevance to the earlier request that led the HSE to conclude that it had carried out all reasonable efforts to locate all relevant records in circumstances where the record she was seeking was subsequently located.

In conclusion, therefore, while I accept that the applicant may be pursuing a grievance with the HSE, I do not consider that there is sufficient evidence before me to support a view that the applicant’s request in this case is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests. I do not consider the applicant’s request was made without legitimate grounds or that it was not made in good faith. I find, therefore, that the HSE was not justified in refusing the request under section 15(1)(g). As such, I find that the most appropriate course of action to take is to annul the HSE’s decision and to direct it to consider the applicant’s request afresh, that being a request for any records that contain details of the searches conducted to locate the records she sought in her previous FOI request and any lists of the staff who were asked to provide records, should they exist.

Finally, it is important to note that a finding by this Office that the HSE was not justified in refusing the request in this case under section 15(1)(g) does not mean that it can never deem subsequent related requests to be vexatious.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the HSE’s decision to refuse the applicant’s request under section 15(1)(g) of the Act and I direct it to conduct a new decision making process on the request.

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