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Case Number: 160260

Whether the Hospital was justified in refusing the applicant's request for access to various records including those relating to complaints or disciplinary investigations about a named consultant at the Hospital, on the basis that his request formed part of a pattern of manifestly unreasonable requests

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

 

Background

The applicant sought access to records relating to any complaints, disciplinary actions/investigations, internal reviews or meetings about a named consultant in the Hospital. On 20 May 2016, the Hospital refused his request on the basis that it formed part of a pattern of manifestly unreasonable requests. The applicant sought an internal review of that decision, following which the Hospital affirmed its original decision. On 13 June 2016, the applicant sought a review by this Office of the Hospital's decision.

I consider that this review should now be brought to a close by way of a formal binding decision. In conducting this review I have had regard to the correspondence between the Hospital and the applicant on the request, and to correspondence between this Office and both the applicant and the Hospital on the matter.

 

Scope of Review

This review is solely concerned with whether the Hospital was justified in its decision to
refuse the applicant's request under section 15(1)(g) of the FOI Act.

 

Analysis and Findings

Section 15(1)(g) of the FOI Act provides for the refusal of a request that is considered to be frivolous or vexatious, or to form part of a pattern of manifestly unreasonable requests. This Office has previously set out a number of non-exhaustive factors considered to be relevant in assessing whether a request may be categorised as frivolous or vexatious and in determining whether or not there is evidence of a pattern of manifestly unreasonable requests. The factors include:

The number of requests made - are they considered excessive by reasonable standards?
The nature and scope of the requests - are they excessively broad and varied in scope or unusually detailed?
The purpose of the requests, e.g. have they been made for their "nuisance value"; are they made without reasonable or legitimate grounds; and/or are they intended to accomplish some objective unrelated to the access process?
The intent of the requester - is the requester's aim to harass the public body?

I have adopted that same approach for the purpose of conducting this review.

It appears that the request that is the subject of this review has its background in a grievance the applicant has been pursuing with the Hospital for the past five years. I understand that the applicant was not satisfied with the outcome of his treatment in the Hospital and that he subsequently complained to the Hospital, the Ombudsman and the Medical Council about the matter.

In its submission to this Office, the Hospital informed this Office that it had received eight requests for access to records from the applicant since 2015 to date, seeking copies of his healthcare records, complaints procedures, correspondence, and information on/from current and past Hospital staff. It contended that it had taken all reasonable steps to obtain and release relevant records to the applicant where possible. It argued that the applicant's persistent requests are presenting unreasonable demands on its staff. It also contended that it could not reproduce records already released or create records that did not exist, but that the applicant refused to accept that and had continued to submit new FOI requests for these records.

The Hospital further contended that the applicant has consistently called the Quality and Patient Safety Department of the Hospital over the past year demanding assistance. I also note that in light of the number of calls he was making to staff throughout the Hospital, it restricted the applicant's contact with Hospital staff to one designated staff member and insisted that all further contact be made in writing. The Hospital added that the designated staff member has repeatedly offered to facilitate a meeting between them and his GP and that this has not been accepted to date.

The Hospital's position is that all relevant documentation and information have been provided to the applicant in response to his earlier requests. The Hospital has argued that the applicant has engaged in a pattern of unreasonable conduct. Essentially, it contends that, in the context of his overall dealings with the Hospital, this request forms part of a pattern of manifestly unreasonable requests.

The applicant argued that he made a number of requests to the Hospital in order to get information to support his complaints. He contended that, having read the Ombudsman's report on his complaint, he became aware that further records existed and that he made additional requests as a result. He also said that he found it difficult to accept that there were no further records regarding his situation. In relation to the request in this particular case, he contended that he had a right to know whether other patients had complained about the consultant in question. I should state at this point that records relating to disciplinary actions and complaints against members of staff of an FOI body would generally be considered to contain personal information of third parties and as such, exempt from release under FOI.

I should also state that I am aware that this Office is currently considering a separate review involving the applicant's requests for records relating to his medical circumstances which he believes ought to exist. As that review is proceeding separately, I have not had regard to any arguments concerning the existence, or otherwise, of such records.

Section 15(1)(g) identifies three characteristics of a request which may lead to a decision to refuse the request; namely that the request is frivolous, vexatious, or forms part of a pattern of manifestly unreasonable requests. While these are three separate characteristics, there may often be a degree of overlap. For example, 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.

The matters at issue in this case have been the subject of a complaint to the Ombudsman and the Medical Council. Given the level of attention which the applicant's complaints have received, the information which the Hospital has made available to him, and the increasingly personalised nature of his requests relating to staff members, it seems to me that submitting FOI requests has become an integral part of his strategy in pursuing his dispute with the Hospital. It appears to me therefore, that the applicant is using the FOI Act for a purpose unrelated to the right of access to records, i.e. it is being used tactically for the purpose of pursuing the dispute. It further seems to me that the applicant appears to be using FOI in an effort to challenge the Hospital's handling of his complaint. Having considered the nature of the applicant's current request against the background of his ongoing prolonged interaction with the Hospital, I find that the purpose of his request is directed at an objective unrelated to the access process.

In the circumstances, while I am not convinced that the request that is the subject of this review necessarily forms part of a pattern of manifestly unreasonable requests, I am, nevertheless, of the view that a pattern of conduct exists which suggests an abuse of the FOI process with no regard for the significant burden which the pursuit of his grievance through various fora has placed on the Hospital. Accordingly, I am satisfied that that the Hospital was justified in deciding to refuse the request at issue under section 15(1)(g) on the ground that it is frivolous and/or vexatious.

 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the Hospital's decision to refuse the applicant's request under section 15(1)(g).

 

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