Mr X c/o Y Solicitors and Department of Education

CourtInformation Commission
JudgeSenior Investigator
Judgment Date12 Apr 2021
Case OutcomeThe 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.
Record NumberOIC-67300-C6X1Z9
RespondentDepartment of Education
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...

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