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Letter of discontinuance in the case of Mr X.

Our Reference: 120134, 130035, 130083, 130110, 130143, 130147 and 130151

11 September 2013

Mr X

Dear Mr X,

I am writing to inform you that I have decided to discontinue my review in seven separate review applications made by you to my Office in connection with requests you made to University College Dublin ("UCD") under the Freedom of Information Acts, 1997 - 2003 ("the FOI Act"). The seven applications in question were identified in an email provided to you by Mr Stephen Rafferty, Senior Investigator, on 6 September 2013.

I note that Mr Rafferty, in a letter of 4 September 2013, informed you of his preliminary view that the reviews should be discontinued under section 34(9)(a)(i) of the FOI Act. Section 34(9)(a)(i) of the FOI Act provides that I may discontinue a review if I consider that the application for review or the application to which the review relates is frivolous or vexatious. Furthermore, section 34(9)(b) provides that in determining whether to discontinue a review under section 34, I shall, subject to the provisions of the FOI Act, act in accordance with my own discretion. I further note that Mr Rafferty invited you to reply to his preliminary views and he informed you that any comments which you may wish to make in response to his letter would be brought to my attention before a binding decision was made. I have considered your submission of 5 September 2013 and the associated documents you submitted in response to Mr Rafferty's letter. Among other things, you raised the following matters in your submission:

you questioned whether Mr Rafferty considered the applications to be frivolous or vexatious,
you submitted supporting documentation in support of your interpretation of the terms frivolous and vexatious, and based on that interpretation, you set out your views as to why your applications could not be so described,
you questioned whether a 2003 decision which Mr Rafferty appended to his letter constituted evidence in these reviews, and
you pointed out that the High Court judgment of 29 January 2013, upon which Mr Rafferty relied, has been appealed to the Supreme Court.

I will address these matters below. While many of your comments take the form of questions, I am satisfied that Mr Rafferty's letter clearly explained the basis on which he formed his preliminary view and that I may reasonably take your response as a submission for consideration by me. Accordingly, in considering what course of action to take, I have had regard to your correspondence with UCD and with my Office on all seven applications, including your recent submission in response to Mr Rafferty's letter of 4 September 2013. I have also had regard to correspondence between my Office and UCD and to the contents of the High Court judgments as referenced in Mr Rafferty's recent letter.

Facts and Circumstances

As Mr Rafferty explained in his recent letter, I have explained in previous decisions that I consider a request or an application to be "frivolous or vexatious" within the meaning of the FOI Act where it either is 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. In addition, I previously explained that the outcome or cumulative effect of the requests is a relevant consideration and that it is appropriate to consider the requests under review in the context of other requests made to the public body and the requester's dealings with my Office. Mr Rafferty also suggested that it is also appropriate to consider the requests under review in the context of the requester's dealings with the public body concerned. I agree. I should explain that it is clear to me Mr Rafferty included a copy of my 2003 decision with his recent letter simply to act as a reminder of how I approach such matters, given that you were the applicant in that decision. He did not suggest that the 2003 decision was evidence upon which he relied in forming his preliminary view on the cases now at issue, although it would appear pertinent that I have previously found your use of the FOI Act to be an abuse of process. I note, for example, that in 2003 I discontinued 12 separate review applications made by you to my Office in connection with requests you made to Trinity College Dublin on the ground that the applications or the applications to which the reviews related were frivolous or vexatious. In 2006, I refused to accept a further 26 separate review applications relating to Trinity College Dublin for the same reason. Similarly, in 2011, I discontinued 30 further review applications relating, yet again, to Trinity College Dublin.

I should explain at this stage that I am satisfied that section 34(9) entitles me to discontinue an application for review where I consider the application for review, or the application to which the review relates, to be frivolous or vexatious. It is not necessary for me to consider the application to be both frivolous and vexatious, although I can imagine that it will often be the case that both concepts apply. I note that you submitted details of a Hong Kong High Court ruling and a decision of a UK Industrial Tribunal in support of your interpretation of the terms frivolous and vexatious. Adopting the approaches taken in those cases, you argue that none of your applications have been shown to have been made with the knowledge that they were doomed to failure, as a try on, or with that same knowledge with an added intention of putting UCD to unjustified trouble and expense. While the FOI Act does not define the terms, I have previously set out my approach to determining whether an application is frivolous or vexatious and there is nothing in your submission which suggests to me that I should alter my approach in the case of the reviews now at issue. For this reason, for the purpose of considering whether or not to exercise my discretion to discontinue these review applications, I have adopted the approach previously taken when considering whether an application can be considered to be frivolous or vexatious. While I make no finding on the matter, I would add that it is not at all clear to me that an adoption of the interpretation you have offered would result in a different outcome in this case.

I agree with Mr Rafferty that seven applications for review of decisions of the same public body is not, on the face of it, necessarily excessive. However, it is an undisputed fact that all seven applications relate to a long-running grievance you have with UCD, stemming back almost twelve years. It is also undisputed that the grievance stems from the fact that you were not initially offered a place on a Masters in Social Science (Social Worker) degree course at UCD for which you had applied in late 2001 and, following a determination by the Office of the Equality Tribunal in 2006 that you had failed to establish a prima facie case of discrimination on the gender ground, that you have since engaged in ongoing litigation with UCD on matters relating to that determination. In my view, the comments of Hedigan J. in related High Court judgments of 9 May 2012 and 29 January 2013 give a clear account of how the Courts perceive your conduct in terms of your ongoing litigation with UCD. In his judgment of 9 May 2012, Hedigan J. stated the following:

"The plaintiff has a pattern of continual application to the Courts which has served to prolong his proceedings. Counsel for UCD has indicated that her clients are very concerned about the repeated applications to the Court and that these applications are part of tactics to prolong the proceedings which has put UCD to untold cost. This Court is equally concerned that the processes of the Court are being abused and that valuable Court time is being wasted."

Hedigan J. further stated:

"The limited resources of the judicial system should not be squandered on actions of little merit when so many parties are seeking to have real disputes of great import resolved by these courts. Having spent considerable time hearing this matter and reading the pleadings, it seems to me that the dispute between the parties herein does not rise above the level of hurt feelings. Balancing this against the inordinate time the proceedings have taken and the pattern of continuous applications by the plaintiff, it seems to me that there are grounds upon which the court would be justified in making a restraining order."

In his later judgment of 29 January 2013, Hedigan J. stated the following:

"The affidavit of [Mr. Y.] for the respondent/applicant herein is particularly striking. It recounts a sad and sorry tale of interminable, highly complex applications, most of which were found to be groundless. Vast amounts of court time here in Ireland and in Luxembourg have been expended. Immense costs on behalf of the defendants have been incurred."

I also note from the judgment of 29 January 2013 that the High Court made an order prohibiting the issuing of any further applications or proceedings arising from your application to UCD in 2001 or against UCD or any of its servants or agents of any of its legal advisors without the prior consent of the High Court. While I note that you have drawn my attention to the fact that you filed a notice of appeal against that order at the Supreme Court and that you consider the appeal to be sub judice, it remains the case that, as a matter of fact, the High Court made the order in question. Furthermore, while the comments of Hedigan J. relate to the manner in which you have pursued your grievance through the Courts, it seems to me that the comments give a clear indication of a pattern of conduct which you have displayed and which has placed enormous burdens on UCD.

It further seems to me that your use of the FOI Act to continue to pursue that same grievance constitutes yet another part of your strategy for furthering and/or prolonging your grievance with UCD and also constitutes a pattern of conduct which suggests an abuse of the FOI process. You are clearly aware of the enormous burden which your pursuit of your grievance through the Courts has placed on UCD. Having regard to the nature of your requests, I am of the view that your use of the FOI process serves to increase that administrative burden and very little else. In case no. 120134, you sought a statement of reasons for UCD's refusal to provide certain information on the qualifications of the applicants who embarked on a place on the 2002 course, notwithstanding that it was made quite clear during the course of related court proceedings that the information was refused as it was considered to be of a sensitive and personal nature. Case no. 130035 is concerned with a request for records relating to a servant or agent of UCD gaining access to your apartment building, apparently relating to the service of papers in connection with ongoing court proceedings. Case nos. 130083, 130110, 130143, 130147 and 130151 all relate to costs orders made against you. In Case no. 130083, you sought a statement of reasons as to why UCD had not served on you a bill of costs or a notice of commencement of taxation. In case no. 130110, you sought access to records relating to those cost orders going to taxation. In case no. 130143, you sought access to records relating to an assessment of your liability in respect of payment owed or payable to UCD. In case no. 130147 you sought amendment of records that indicated that bills of costs were going to taxation. On 15 April 2013, you were informed that UCD was reserving its position in respect of all costs orders pending the outcome of your Supreme Court appeal. You subsequently submitted a request ( case no. 130151 refers) for a statement of reasons as to why UCD was reserving its position.

Having considered the nature of all seven applications, against the background of your ongoing prolonged litigation with UCD, I find that the purpose of your requests is directed at an objective unrelated to the access process. While it seems to me that at least some of your requests were submitted for nothing other than nuisance value, I find that your use of FOI was, at a minimum, intended to increase the administrative burden which has been placed on UCD in dealing with your grievance dating back to 2002 and to prolong the process of dealing with that grievance. I would add that I would have arrived at the same conclusion regardless of whether or not the High Court had made the order of 29 January 2013 referred to above.

Conclusion

I conclude, based on the evidence before me, that you are using FOI tactically in pursuit of your long-standing grievance with UCD. I am satisfied, therefore, that these reviews form part of a pattern of conduct that amounts to an abuse of the FOI process and I find, therefore, that your applications or the applications to which the reviews relate are vexatious. Accordingly, in the exercise of my discretion under section 34(9)(b), I discontinue these reviews pursuant to the provisions of section 34(9)(a)(i) of the FOI Act.

Yours sincerely,

Emily O'Reilly
Information Commissioner