Mr X c/o Y Solicitors and Department of Education

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 12 April 2021
• Case Outcome: The Senior Investigator affirmed the Department's decision. She found that the Department was justified in refusing the request under section 15(1)(g) of the FOI Act.
• Court: Information Commission
• Respondent: Department of Education
• Record Number: OIC-67300-C6X1Z9

Whether the Department was justified in refusing the applicant’s request under section 15(1)(g) of the FOI Act on the basis that it forms part of a pattern of manifestly unreasonable requests

12 April 2021

Background

References to the applicant in this decision also refer to a company of which I understand he is a director and a firm of solicitors that the applicant confirms as representing him and/or the company.

By way of background, Bus Éireann (BE) operates the School Transport Scheme (the Scheme) on behalf of the Minister for Education and Skills. The applicant took a judicial review (JR) against the Minister in 2012 in relation to the operation of the Scheme. Although that litigation has concluded, separate but related legal proceedings have been taken. A complaint was also made to the European Commission regarding the Scheme’s compatibility with State Aid rules, which found that the system needed to be reformed.

The applicant’s FOI request to the Department of 22 January 2020 sought access to all records held by BE, showing the exact date and time that a named Senior Counsel was first instructed by BE in relation to the JR, and also any record showing that an unnamed solicitor acting for BE knew about the JR concerned. The Department’s decision dated 19 February 2020 refused the request under section 15(1)(g) of the FOI Act on the basis that it was vexatious. The applicant sought an internal review on 21 February 2020. The Department’s internal review decision of 13 March 2020 affirmed its decision on the request. On 16 March 2020, the applicant applied to this Office for a review of the Department’s decision. He subsequently confirmed that this Office may deal with his solicitors in relation to this review. During the review, the Department also argued that the request was part of a pattern of manifestly unreasonable requests.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. Delays arose because the applicant’s solicitor was not in a position to respond to correspondence from this Office because of the Covid-19 crisis. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the Department and the applicant. I have also had regard to the provisions of the FOI Act.

Scope of the Review

As set out above, the Department has not made a decision regarding whether any relevant records that may exist are held by it for the purposes of the FOI Act, or are exempt under the Act’s substantive exemption provisions. This review will therefore not consider whether the Department should release records related to the request. This is because this Office is not a first instance decision maker on such matters and my decision will not refer to the applicant’s arguments in that regard.

Accordingly, the scope of this review is confined to whether the Department’s refusal of the applicant’s request was justified under the provisions of section 15(1)(g) of the FOI Act.

Findings

Exchanging of submissions

At the outset, I will address the applicant’s argument that he is entitled to see the Department’s submission in this case. He quotes from an unidentified judgment regarding the Secretary of State for Defence’s duties of disclosure. The applicant was invited to elaborate on his submission in this regard, but he did not do so.

The applicant also refers to the “judgment of the Supreme Court May [2019 IRSC 45] AP v Minister for Justice and Equality”. The judgment with the above neutral citation is concerned with a case taken by the Director of Public Prosecutions. The Investigator asked the applicant if he intended to refer to the case with the neutral citation [2019 IRSC 47], which concerns the level of information provided to a person whose application for naturalisation had been refused. The applicant says that the AP judgment means that a body making judicial determinations or which is partly judicial in character must fully disclose all determinative evidence. He says that the presumption lies in his favour.

As a general rule, it is this Office’s policy that submissions are not usually 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. Reviews undertaken by this Officer under the FOI Act are inquisitorial, as opposed to adversarial, in nature. This Office’s Investigator wrote to the applicant on 29 April 2020 to put him on notice of relevant material issues, including a summary of the particular requests that the Department considers to form a pattern of manifestly unreasonable requests. I have considered the applicant’s response to that letter along with his initial submission to this Office, and all other correspondence with this Office.

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.

The High Court has previously considered the fairness of this Office's procedures in the context of this Office's treatment of submissions. In The National Maternity Hospital v the Information Commissioner [2007] 3 IR 643, Quirke J. stated as follows:

"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 am satisfied that all material points raised by the Department in this case have been communicated to the applicant.

Section 15(1)(g)

Section 15(1)(g) is a discretionary ground for refusing access to a record. It applies where the public body considers that the request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests from the same requester or from different requesters whom the body considers to have made the requests acting in concert.

This Office has found in other cases that a request may be regarded as...