Whether Enterprise Ireland was justified in its decision to refuse a request for access to records relating to the award of an Enterprise Ireland Innovation Voucher under section 15(1)(g) of the Act, on the ground that the request forms part of a pattern of manifestly unreasonable requests

28 July 2022

Background

In a two-part request dated 19 August 2021, the applicant sought access to records relating to the award of an Innovation Voucher to his company through Enterprise Ireland's Innovation Voucher programme. As EI did not issue a decision on the request within the required time-frame, the applicant sought an internal review of the deemed refusal of his request on 27 October 2021. In its internal review decision, EI refused the request under section 15(1)(g) of the Act, on the ground that the request formed part of a pattern of manifestly unreasonable requests. On 19 April 2022, the applicant applied to this Office for a review of EI's decision. Following his application for a review, the applicant informed this Office that he no longer required records relating to the first part of his request.

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 EI as outlined above and to the correspondence between this Office and both parties, including the submissions made by EI 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 concerned solely with whether EI was justified in its decision to refuse the applicant's request under section 15(1)(g) of the Act, on the ground that the request forms part of a pattern of manifestly unreasonable requests.

Preliminary Matters                                                                       

In his submissions to this Office for a review of EI's refusal of his request, the applicant expressed concerns about the manner in which EI had dealt with a number of matters relating to the award of an Innovation Voucher under the Enterprise Ireland Innovation Voucher programme. I should explain that it is not within the remit of this Office to examine complaints about how FOI bodies carry out their administrative functions or to adjudicate upon how they perform their functions generally.

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 instance, 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).

Moreover, the outcome or cumulative effect of the requests is also a relevant consideration. 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 her judgment 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.

When considering whether a request forms part of a pattern of manifestly unreasonable requests in accordance with section 15(1)(g), the question I must consider is 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).

It is also important to note that while section 13(4) of the FOI Act generally requires public bodies to disregard any reasons for the request, a requester's motive for making an FOI request is relevant when considering the application of section 15(1)(g). 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".

Enterprise Ireland's Submission

In its submissions to this Office, EI said the applicant's company was awarded an Innovation Voucher under the Enterprise Ireland Innovation Voucher programme. It said Innovation Vouchers are available to assist a company to explore a business opportunity or problem with a registered knowledge provider. EI said it is aware that a dispute arose between the applicant and his chosen knowledge provider but that EI has no contractual role to play in resolving that dispute. It said the applicant submitted FOI requests to discover any paperwork that exists within EI which would support his assertion that the knowledge provider did not correctly carry out testing on his product following receipt of the Innovation Voucher by EI.

EI said that since 2019, it has received a significant volume of communications in relation to the Innovation Voucher from the applicant. It said the communication has taken the form of FOI requests and a complaint. It said the applicant's FOI requests from the outset were complex and unclear which resulted in numerous and often unsuccessful attempts by the decision makers to clarify the records being sought. It said the FOI Unit always applied best efforts to assist the applicant with his submitted FOI requests. However, from a FOI processing perspective, it said administration of the applicant's FOI requests was difficult for a number of reasons, e.g. the requests were buried within long complaint emails and, in many cases, requesting no further action from Enterprise Ireland; requests were also submitted and then withdrawn; and requests were repetitive in nature. It said that for those same reasons, it was difficult to determine the number of FOI requests made to EI, but that at least 15 request were made for the records which are the subject of this request.

EI said one of the agency's executives met with the applicant on the 12th of February 2020 to see if it could provide any informal guidance to him. While the engagement was cordial, and the agency's executive listened to the concerns of the applicant, no further progress was made. It said despite the undertaking of the review by EI, and the fact that the agency has no contractual role to play in resolving the dispute, the applicant continued to engage with multiple members of its staff, some of whom had no previous dealings with this case or were named in released FOI records, including back-office administration staff who, in some cases, were left upset by this engagement. EI said it has invested significant resources into responding to the applicant's FOI requests and first issued a 15(1)(g) response to him in September 2020, as he had already received all of the documentation which was associated with his Innovation Voucher. It said numerous 15(1)(g) decisions have been issued to the applicant since this date.

EI said the applicant continued to contact the organisation after this communication. It said in December 2021, EI's Company Secretary issued the applicant with a letter stating that the agency would no longer engage with him. It said the applicant acknowledged this position, however, since this communication, the FOI Unit alone has received 43 e-mails from the applicant about both his FOI requests and the complaint.

EI said the applicant has also carried out protests at its office. It said it is of the view that significant time and effort has been afforded to the applicant in regard to his FOI requests for records as well as his complaint. It said the continuous requests and other communications to both the FOI Office and across the agency represents a pattern of unreasonable behaviour.

EI said the narrowing of the scope of the request by the applicant does not change its position under section 15(1)(g). It said the record no longer required by the applicant was already part-granted to him by the Higher Education Authority, with the exception of some redacted information. It said the refusal of the request at issue under section 15(1)(g) does not relate to the type or content of the records being sought but to the pattern of unreasonable behaviour which has been demonstrated by the applicant. It argued, therefore, that the narrowing of the scope of the request does not change its position.

The Applicant's Response

In his application to this Office, the applicant said he rejected EI's reasons for refusing his request. He said the case concerns abuse of public funds in EI.

Following receipt of EI's submissions, the Investigating Officer provided the applicant with details of its grounds for relying on section 15(1)(g) and invited him to make a further submission on the matter. I note the applicant sent 28 emails to the Investigating Officer by way of reply. The applicant's submissions focused mainly on the dispute surrounding the award of the Innovation Voucher. He alleged that the knowledge provider did not correctly carry out testing on his product following receipt of financial support from the agency and that the FOI system in EI was abused in a deliberate attempt to mislead him.

Insofar as the applicant replied to the submission of EI and its reliance on section 15(1)(g) of the Act, the applicant said he did not cause upset to any person. He said he has apologised to various staff members in EI on multiple occasions [not for anything he has said or done]. He said he stated facts so if that has upset anyone sometimes the truth hurts. He said this Office is using the excuse that [his] emails are disturbing and annoying. He said his emails are done in a determined fashion, straight to the point, and that in light of the activity he has experienced he has been very diplomatic. He said he refutes EI's claim that his behaviour is vexatious and that in light of what went on if he was vexatious he had every right to be. He said the multiple emails he sent were necessary. He said this Office was using the vexatious accusations as an excuse to refuse him what he is entitled to, which is not the purpose of the FOI system. The applicant said he is taking on the system. He apologised to the Investigating Officer for determining to get to the bottom of this and for all who have been roped into what he described as a horrendous experience.

My 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, we also take 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 he is, in essence, arguing that his use of the FOI process and his past engagements with EI was as a result of his concern about the manner in which EI dealt with the award of his Innovation Voucher, and the abuse of public funds by EI. Further, the applicant appears to be of the view that his behaviour, even if vexatious, was justified in the circumstances. It is well established that the FOI Act recognises the need to ensure, in the public interest, openness, accountability and transparency regarding the activities of public bodies [section 11(3) refers]. It does not, however, provide an appropriate basis for unreasonable behaviour.

It seems to me that on any reasonable analysis of the matter, the applicant's engagements with EI over the period in question have been excessive. It further seems to me that the applicant's use of FOI has formed an integral part of his strategy for challenging, or, in his own words, taking on the system, in respect of matters about which he has concerns. 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 EI said all documentation within the scope of its remit has been released to the applicant through the FOI Unit over the last three years.

It appears that in this case, having regard to the cumulative effect of the applicant's FOI requests to Enterprise Ireland, extensive email dealings and other related activities, including an in-person meeting with an EI executive and staging a protest at EI's offices, the applicant has had little or no regard for the significant burden that was placed on EI by having to engage with him in the manner outlined. I am satisfied that the applicant's request can reasonably be regarded as forming part of a pattern of manifestly unreasonable requests. I find, therefore, that EI was justified in refusing the request at issue under section 15(1)(g) of the Act on the ground that it forms part of a pattern of manifestly unreasonable requests.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of Enterprise Ireland to refuse the applicant's 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