Patrick Kelly v Information Commissioner

• Jurisdiction: Ireland
• Judge: Ms Justice Iseult O'Malley
• Judgment Date: 07 October 2014
• Neutral Citation: [2014] IEHC 479
• Docket Number: Record No.: 325 MCA/2013
• Court: High Court
• Date: 07 October 2014

Kelly v Information Cmsr

IN THE MATTER OF THE FREEDOM OF INFORMATION ACTS 1997 - 2003

Between/

PATRICK KELLY

Appellant

And

THE INFORMATION COMMISSIONER

Respondent

[2014] IEHC 479

Record No.: 325 MCA/2013

THE HIGH COURT

Freedom of Information – Jurisdiction – Appeal – Information Commissioner discretion – Vexatious or Frivolous applications – Statutory Interpretation - Freedom of Information Acts, 1997 to 2003

This case is an appeal against a decision of the respondent, the Information Commissioner, to discontinue reviews in relation to seven separate applications made by the appellant under the provisions of the Freedom of Information Acts, 1997 to 2003. The Information Commissioner deemed the applications as vexatious.

The case came before O'Malley Iseult J. in High Court.

O'Malley Iseult J. delicately evaluated the submissions from the two parties and deliberated on whether or not the respondent correctly exercised her jurisdiction under s.34 of the Freedom of information act. The appellant argued that she did not correctly interpret the phrase frivolous or vexatious. The appellant claimed that the respondent inaccurately interpreted the term vexatious under the act. Additionally the appellant claimed that that the respondent breached his right to fair procedures among other ancillary matters. O'Malley Iseult J. found that the Court has no jurisdiction to entertain this appeal. Furthermore O'Malley Iseult J. declared that complaints as to these latter decisions, as with any other aspect of the process adopted by the Commissioner, are more properly addressed by judicial review. In respect to the test for determining whether an application is frivolous or vexatious O'Malley Iseult J. found that the Information Commissioner was entitled by statute to use his or her discretion. There 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. O'Malley Iseult J. figured that the respondent did not err either in her assessment of the legal test to be applied or in its application to the facts. O'Malley Iseult J. affirmed that in these circumstances the court was satisfied that the respondent's interpretation of the statutory terms and her application of them were within her statutory powers and entirely justifiable. O'Malley Iseult J. dismissed the appeal and affirmed the decision of the lower court.

Appeal dismissed

FREEDOM OF INFORMATION ACT 1997 S34(9)(A)(i)

KELLY v UNIVERSITY COLLEGE DUBLIN UNREP HEDIGAN 29.1.2013 2013/28/8320 2013 IEHC 23

TREATY OF ROME ART 234

FREEDOM OF INFORMATION ACT 1997 S6(1)

FREEDOM OF INFORMATION ACT 1997 S41

FREEDOM OF INFORMATION ACT 1997 S8(4)

FREEDOM OF INFORMATION ACT 1997 S10

FREEDOM OF INFORMATION ACT 1997 PART III

FREEDOM OF INFORMATION ACT 1997 S22(1)(A)

FREEDOM OF INFORMATION ACT 1997 S22(1)(B)

FREEDOM OF INFORMATION ACT 1997 S17

FREEDOM OF INFORMATION ACT 1997 S18

FREEDOM OF INFORMATION ACT 1997 S34

FREEDOM OF INFORMATION ACT 1997 S34(2)

FREEDOM OF INFORMATION ACT 1997 S34(6)

FREEDOM OF INFORMATION ACT 1997 S34(8)

FREEDOM OF INFORMATION ACT 1997 S34(9)

FREEDOM OF INFORMATION ACT 1997 S34(12)

FREEDOM OF INFORMATION ACT 1997 S46

FREEDOM OF INFORMATION ACT 1997 S46(1)(C)(i)

FREEDOM OF INFORMATION ACT 1997 S10(1)(A)

FREEDOM OF INFORMATION ACT 1997 S18(1)

FREEDOM OF INFORMATION ACT 1997 S7(1)

PRAJAPATI v RICHARD THOMAS & BALDWINS LTD 1966 ITR 564

FREEDOM OF INFORMATION ACT 1997 S34(9)(B)

FREEDOM OF INFORMATION ACT 1997 S42

FREEDOM OF INFORMATION ACT 1997 S42(1)

NOWAK v DATA PROTECTION CMSR 2013 1 ILRM 207 2012/34/10011 2012 IEHC 449

DATA PROTECTION ACT 1988 S10(1)(A)

DATA PROTECTION ACT 1988 S10(1)(B)

DATA PROTECTION ACT 1988 S10(1)(B)(ii)

DATA PROTECTION ACT 1988 S26(1)

DATA PROTECTION ACT 1988 S26

KILLILEA v INFORMATION CMSR 2003 2 IR 402 2003/29/6951

FREEDOM OF INFORMATION ACT 1997 S34(9)(A)(ii)

FREEDOM OF INFORMATION ACT 1997 S34(9)(A)

FREEDOM OF INFORMATION ACT 1997 S34(2)(B)

H (E) v INFORMATION CMSR 2001 2 IR 463 2001/11/3104

INFORMATION CMSR v HEALTH SERVICE EXECUTIVE UNREP O'MALLEY 24.7.2013 2013/27/7989 2013 IEHC 373

Introduction

1 1. This is an appeal against a decision of the respondent to discontinue reviews in relation to seven separate applications made by the appellant under the provisions of the Freedom of Information Acts, 1997 to 2003 ("the Act", or "FOI"). Each of the reviews related to requests made to University College Dublin ("UCD"). The respondent's decision was made pursuant to s.34(9)(a)(i) of the Act, on the basis that the applications were considered to be vexatious.

2 2. The central issue raised by the appellant is whether the respondent correctly exercised her jurisdiction under that provision. He argues that she did not correctly interpret the phrase "frivolous or vexatious".

3 3. The appellant also asserts that the respondent breached his right to fair procedures in that she is alleged to have heard representations from UCD "behind his back".

4 4. An issue has also been raised as to the authority of the principal deponent on behalf of the respondent to make affidavits, in circumstances where the Information Commissioner who made the decision under consideration moved on from that office and was replaced during the course of these proceedings.

5 5. The respondent wishes the court to determine these issues, although maintaining that there is as a matter of law no right of appeal against the finding in question.

6 6. The appellant also seeks an order directing the respondent to display on the official website of the Information Commissioner a copy of an order made by Herbert J. on the 16 ^th April, 2008 in proceedings entitled Kelly v Information Commissioner 2006/40 MCA. This relates to an order made on consent, by which the Court declared invalid a decision of the respondent on the basis that the procedure adopted by the respondent had been unfair.

7 7. UCD was originally a notice party to the present appeal. By order of O'Neill J made on the 20 ^th January, 2014 the proceedings, in so far as UCD was concerned, were dismissed as being frivolous and vexatious.

Background

8 8. All of the appellant's applications to the respondent, so far as this appeal is concerned, related to information requests made to UCD. To put them in context, it is necessary to describe briefly the history of the appellant's dealings with that institution. A fuller account will be found in the judgment of Hedigan J. in Patrick Kelly v University College Dublin [2013] IEHC 23.

9 9. In 2001 the appellant applied for a place in UCD on a Masters in Social Science (Social Worker) degree course ("the course"). He was not offered a place and made a complaint to the Equality Tribunal of discrimination on grounds of gender. Meanwhile he was offered and accepted a place on a similar course in Trinity College. It appears from the correspondence in this case that over the years the appellant made a large number of applications to Trinity under the Act, which are referred to below.

10 10. The appellant was unsuccessful before the Equality Tribunal and on appeal in the Circuit Court. He was also largely unsuccessful in extensive related litigation before the High Court and in a reference to the European Court of Justice under Article 234 of the Treaty.

11 11. There are a number of written judgments of the superior courts dealing with the appellant's litigation against UCD. It is not necessary to refer to all of them, but it should be noted that in the course of the proceedings it was determined that the appellant was not entitled to disclosure of personal information relating to successful applicants for the UCD course. This was first determined by the President of the Circuit Court, and further dealt with, on appeal, by McKechnie J. who referred certain questions to the Court of Justice of the European Union and, on foot of the decision of that Court, ruled against the appellant. A motion by the appellant to set aside the ruling of McKechnie J. on grounds of alleged fraud was refused by Hedigan J. in a written judgment delivered on the 30 ^th March 2012.

12 12. On the 29 ^th January 2013, Hedigan J. granted an application by UCD for an order permanently staying all of the appellant's proceedings against it and prohibiting the appellant from issuing any further proceedings or applications arising out of his application for the place on the above- mentioned course. He did so on the basis that he was satisfied that the Court's processes had been

"…repeatedly invoked to pursue groundless litigation incapable of leading to any possible good"

and that the proper administration of justice required the making of such an order. It is relevant for the purposes of this case to note that Hedigan J. awarded the university the costs of the application against the appellant, and that there had previously been other costs orders against him.

13 13. An appeal was lodged against Hedigan J.'s decision. So far as this court is aware it has not yet been disposed of.

14 14. While his litigation was ongoing the appellant commenced a series of applications under the Freedom of Information Acts.

Relevant provisions of the Act

15 15. In so far as it is relevant to this case the scheme of the Act is summarised here.

16 16. The objective of the Freedom of Information Act, 1997 is encapsulated in s.6(l) of the Act, which provides that:

"Subject to the provisions of this Act, every person has a right to and shall, on request therefor, be offered access to any record held by a public body and the right so conferred is referred to in this Act as the right of access."

17 17. Pursuant to the Act, the right of access is exercised in the first instance by making a request to...