Whether the SWAO was justified in refusing, under section 15(1)(g) of the Act, the applicant-�s request for records relating to her appeal against the refusal of her application for a non-contributory pension, on the ground that the request was vexatious

15 September 2022

Background

This case is one of a number of reviews carried out by this Office concerning a dispute the applicant and her husband have with the SWAO and/or the Department of Social Protection (the Department) in respect of the Department-�s assessment of the couple-�s State Pension Non Contributory (SPNC) entitlements. I understand that the applicant-�s husband is in receipt of an SPNC and had been in receipt of a qualified dependant adult payment in respect of the applicant. On turning 66, the applicant applied for an SPNC in her own right, at which point the means of the couple were reviewed in order to assess the entitlements of the applicant.

The Department-�s Deciding Officer concluded that the applicant had failed to declare income in her SPNC application. Amongst other things, the Deciding Officer considered that the applicant was operating as a self-employed acupuncturist and had failed to declare her resulting income. According to the Department, failure by the couple to comply with numerous requests for information sought on their means for SPNC assessment purposes resulted in the disallowance of the application made by the applicant. Following this, the applicant wrote to the Chief Appeals Officer in both English and Chinese to request an appeal of the Department-�s decision.

While the FOI request that is the subject of this review was made by the applicant, both she and her husband engaged with this Office in the course of this review. For the sake of convenience, throughout this decision, I refer to correspondence with either party as correspondence with the applicant.

In a request dated 1 November 2021, the applicant sought the following:

1. A true copy of her registered appeal against the decision of a named Deciding Officer dated 28 April 2019 addressed to the Chief Appeals Officer.
2. Disclosure of whether her SPNC appeal submission to the office of the Chief Appeals Officer was still pending as per an email sent by the Chief Appeals Officer to a named member of staff of the SWAO.
3. Disclosure of the current standing and location of her pending appeal.
4. Confirmation that the Chief Appeals Officer advised a member of staff that her appeal would not proceed until a review for her husband was made.
5. Disclosure of whether her appeal was registered by a named staff member of SWAO in the Registration Section, and if so the date and time of registration.
6. All correspondence, records, reports, case notes, reviews, attendances, interviews, meetings, emails and documentation relating to her appeal.
7. Disclosure of and access to all or any other -�appeals-� submitted to the SWAO on her behalf by any other person without her express permission or knowledge concerning her application for a non-contributory pension.

In a decision dated 11 November 2021, the SWAO refused the request under section 15(1)(g) of the FOI Act on the ground that the request was vexatious. It said it had previously released a full copy of the applicant-�s social welfare file in November 2019 following a previous request. It said it released further records that post dated November 2019 on foot of two further requests, many of which were created by, or sent in response to, the applicant and/or her husband on foot of requests made in 2020 and 2021. It referred to 16 requests made as being similar in nature and related to the issues raised in the most recent request, and to three reviews by this Office where the relevant decision of the SWAO was affirmed.

The applicant sought an internal review of that decision on 22 November 2021, following which the SWAO affirmed its original decision. By letter dated 1 April 2022, the applicant sought a review by this Office of the SWAO-�s decision. She referenced two emails, one dated 23 July 2019 and one dated 23 September 2019, the details of which she said had only recently been released to her on foot of a separate request to the Department. During the course of the review, the Investigating Officer provided the applicant with details of the SWAO-�s submissions in support of its refusal of the request under section 15(1)(g). She informed the applicant of her view that the SWAO was justified in refusing the request and invited her to make further submissions. Further submissions were subsequently received.

I have now completed my review in accordance with section 22(2) of the FOI Act. I have decided to conclude the review by way of a formal, binding decision. In carrying out my review, I have had regard to the correspondence between the applicant and the SWAO as outlined above and to the correspondence between this Office and both parties on the matter.

Scope of Review

This review is concerned solely with whether the SWAO was justified in its decision to refuse, under section 15(1)(g) of the FOI Act, the applicant-�s request for records and information relating to her appeal against the refusal of her application for SPNC.

Preliminary Matters

Before I address the substantive issues arising, I wish to address a number of preliminary matters. First, 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, I note that much of the applicant-�s argument is concerned with the manner in which the SWAO dealt with the substantive issues relating to the appeal of the decision taken on her SPNC application. 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 outlined above, our role is limited to determining whether the SWAO was justified in refusing the FOI request under section 15(1)(g) of the FOI Act.

Finally, it is important to note that while section 13(4) of the FOI Act generally requires public bodies to disregard any reasons for the making of a request, this Office is satisfied that regard may be had to a requester's motive for making a request when considering the applicability of section 15(1)(g). Indeed, the Court of Appeal endorsed this position in Grange v the Information Commissioner [2022] IECA 153.

Analysis and Findings

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.

Generally speaking, a request is considered by this Office to be frivolous or vexatious where it has 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 that we consider relevant in assessing whether a request may be categorised as frivolous or vexatious and regard those non-exhaustive factors as equally relevant in determining whether or not there is evidence of a pattern of manifestly unreasonable requests. The factors include, but are not limited to;

1) The actual number of requests filed: are they considered excessive by reasonable standards?

2) The nature and scope of the requests: for example, 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 which has previously been addressed?

3) The purpose of the requests: for example (a) have they been submitted for their "nuisance" value, (b) are they made without reasonable or legitimate grounds, and/or (c) are they intended to accomplish some objective unrelated to the access process?

4) The sequencing of the requests: does the volume of requests or appeals increase following the initiation of court proceedings or the institution or the occurrence of some other related event?

5) The intent of the requester: is the requester's aim to harass government or to break or burden the system?
 

It must be stressed that this list is non-exhaustive, nor is it necessary for all of the above factors to be present before a request can be refused under section 15(1)(g).

It is also appropriate to consider the requests concerned in the context of other requests made to the FOI body and in the context of the requester's other dealings with the FOI body concerned. On that latter point, I note that in Kelly v the Information Commissioner [2014] IEHC 479, the High Court 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. This view was endorsed by the Court of Appeal in Grange v the Information Commissioner [2022] IECA 153. In Grange, the Court of Appeal found that this Office was -�entitled to take into account the history of dealings between the appellant and the Department and the previous FOI requests insofar as they were relevant to the appellant-�s grievances, as well as the context of the FOI request in question-�.

Submissions

In its submissions to this Office, the SWAO said it did not consider parts 2 to 5 of the applicant-�s request as valid FOI requests on the basis that requests for information, as opposed to requests for records, are not valid FOI requests. It said it was clear that the applicant was seeking answers to questions and not records that contain the information.

It said that the applicant has, at this stage, received all the records coming within the scope of the request that is the subject of this review and that it is similar in nature and closely related to issues raised in 16 other FOI requests. It said that the manner in which the applicant has used FOI has placed a strain on the SWAO-�s resources, and that the requests are minor variations on the same subject i.e. that further records exist relating to the applicant-�s social welfare appeal. The SWAO stated that the volume and nature of the requests made by the applicant have had an impact on the processing of other FOI requests in a timely and efficient manner. It also noted that this Office has affirmed certain previous decisions that no further records exist in relation to the appeal file.

The SWAO added that while there may have been some confusion due to use of -�social welfare file-� and -�social welfare appeals file-� interchangeably, it was of the view that over the course of the 17 FOI requests it had been made clear to the applicant that all records related to her appeal have been released to her. It stated that it is not in a position to advise whether further records exist that may be held by the Department, as opposed to the SWAO.

The SWAO further said that in addition to the high volume of FOI requests, the applicant also sends extensive postal correspondence to SWAO staff outside of the FOI process. It said that each time an FOI request was made, the applicant would engage in considerable correspondence outside the FOI process, challenging the decisions made but not seeking an internal review or making an application for review to this Office. It said that each time a decision was made, the applicant would contact the decision maker or internal reviewer asking that they answer specific detailed questions outlined within a specific timeframe. It said this correspondence also included stated intentions to report the staff member to the Chief Appeals Officer and the media, and to take legal action against the individual staff member.  

In conclusion, the SWAO said it was of the view that the applicant is using FOI as a strategy to pursue her dissatisfaction with the decision on her case, and that the request at issue is vexatious and is part of a pattern of conduct that amounts to an abuse of process or an abuse of the right of access.

In her submissions to this Office, the applicant outlined numerous matters relating both to the request and the subject matter of the request, along with the background issues that prompted the request. While I do not propose to set out her submissions in full, I can confirm that I have had regard to them for the purpose of making this decision.

In her application for review to this Office, the applicant said that on foot of an FOI request to the Department, she had received two emails dating from 23 July 2019 and 23 September 2019. She said that she had not received these from the SWAO despite numerous FOI requests to the SWAO regarding her original appeal. She said that it was clear to her on foot of previous requests that there were two files, her appeal file and her full social welfare file. She said that the social welfare file contained several emails that were not in her appeal file.

In further submissions, the applicant said she had made her appeal of the Department-�s decision on the basis that the deciding officer had failed to apply natural justice to her application regarding her entitlement to a non-contributory pension. She said that this appeal, which she made on 28 April 2019, was missing from her social welfare appeal file, along with further documents relating to her appeal. She also said that certain appeal documents were missing from her social welfare file. She disputed the SWAO-�s position that there was only one file but there may be correspondence held by the Department that is not provided to the SWAO.

In relation to the emails outlined in both her request and her application for review to this Office, the SWAO said that the email dated 23 July 2019 was an internal Departmental email that the SWAO was not aware of and that the Department does not forward internal emails to be placed on the appeal file. It said that the second email from the SWAO to the Department, which was a request for an update of the SNPC claim of the applicant-�s husband, was not placed on the applicant-�s file as it related to her husband-�s appeal. The SWAO said that these emails were initially released by the Department under a previous request in 2019. It said that the applicant subsequently queried these emails with the SWAO, which was answered in a letter dated 27 February 2020, and the emails were subsequently released in 2020 under another FOI request that was addressed to the SWAO.

Analysis

The refusal of a request under section 15(1)(g) is not something that should be undertaken lightly. As its Long Title states, the purpose of the Act is to enable members of the public to obtain access, to the greatest extent possible, consistent with the public interest and the right to privacy, to information in the possession of public bodies. The Act demands that FOI bodies meet very high standards in dealing with requests. They are required to go through the rigorous processing requirements of the Act. However, this Office takes the view that the legislation assumes reasonable behaviour on the part of requesters.

Having regard to the applicant-�s submissions, it seems to me that she is, in essence, seeking to justify her use of the FOI process and her past engagements with the SWAO due to her concern about the manner in which the SWAO dealt with her appeal of the decision of the Department regarding her SPNC entitlements and her view that the SWAO has not provided her with all records relevant to her appeal, contrary to the SWAO-�s assertions on that point.

While I am not required in this review to consider whether the applicant has indeed, received all relevant records, I note that of the four cases where the applicant eventually sought a review by this Office of the decision of the SWAO, we affirmed its decision in all four cases. Two of the requests that were the subject of review were for all records relating to the applicant-�s appeal. Moreover, as I have explained above, the manner in which the SWAO has exercised its functions concerning the appeal are not matters that I can review.

Where a requester is not satisfied that all records sought have been released on foot of a request, the Act provides both for an internal review and a subsequent review by this Office of the decision made. It is not an appropriate use of the FOI process to simply continue to make repeated similar requests for the same records.

It seems to me that on any reasonable analysis of the matter, the applicant-�s engagements with the SWAO over the period in question have been excessive. It is clear to me that the interactions that the parties have had in this case since 2019 have placed a significant burden on the SWAO in terms of the time and resources required to deal with the applicant-�s prolonged efforts to pursue a grievance in relation to her appeal of the refusal of her claim for SPNC. While it is not unreasonable that a requester may avail of FOI to establish certain facts and information about an issue of concern, it is important for requesters to acknowledge that there are practical limits on the extent of the resources that an FOI body must expend in dealing with such requests. It is of note that the SWAO said all documentation within the scope of its remit has been released to the applicant through FOI between 2019 and 2021. As such, I am satisfied that her continued use of FOI comprises a pattern of conduct amounting to an abuse of the right of access. I find, therefore, that the SWAO was justified in refusing the request at issue under section 15(1)(g) of the Act on the ground that it was vexatious.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the SWAO to refuse the applicant's request for records relating to her SPNC appeal 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