Thirteen deadly sins: new ICO guidance on vexatious requests

May 17th, 2013 by Robin Hopkins

On Wednesday, the ICO launched its new guidance on section 14 (vexatious requests) on Wednesday. This follows the Upper Tribunal’s recent decisions on this exemption (Panopticon passim), as well as decisions such as Salford City Council v IC and TieKey Accounts (EA/2012/0047) concerning reliance on section 14 to avoid incurring unreasonable cost burdens.

The ICO’s long-standing 5 indicators are supplanted by a new list of 13 indicators – though the emphasis remains on their not being intended as pseudo-statutory tests (and thus they are not really ‘deadly sins’). The thirteen indicators are (in no particular order):

abusive or aggressive language; burden on the authority; personal grudges; unreasonable persistence; unfounded accusations; intransigence; frequent or overlapping requests; deliberate intention to cause annoyance; scattergun approach; disproportionate effort; no obvious intent to obtain information; futile requests; frivolous requests.

The guidance addresses such topics as round robins, fishing expeditions and requesters acting in concert/as part of a campaign, all of which arise frequently for consideration by public authorities. There is also a section on “recommended actions before making a final decision” (paragraphs 93-97) which public authorities would be wise to consider with an eye on complaints to the ICO from dissatisfied recipients of section 14 notices.

For discussions of the new guidance, see these blog posts from the ICO’s Deputy Commissioner, Graham Smith, and also from FOI Man.

Robin Hopkins

Update on recent Tribunal decisions part 1: the evolving approach to vexatiousness and manifest unreasonableness

November 4th, 2012 by Robin Hopkins

In recent months, the major information law issues have involved the government’s vetoing disclosure of the Prince Charles ‘black spider’ letters, its response to the draft new EU Data Protection Regulation, a number of Article 8 decisions concerning police and criminal records and changes to RIPA. On this last point, note that as of last Thursday, local authorities require a magistrate’s approval for authorising directed surveillance.

There have also been a number of First-Tier Tribunal decisions of late, touching on some of the issues most commonly encountered by public authorities and requesters. Over the next week, Panopticon brings you a summary of these recent decisions, beginning with insights into “vexatious” (s. 14(1) of FOIA) or “manifestly unreasonable” requests (regulation 12(4)(b) of the EIR). These are cases in which the underlying concepts appear straightforward, but their practical application can often be tricky. These provisions are important for those – local authorities in particular – who need to make robust judgment calls about persistent and burdensome exercises of rights to information.

Requests by members of groups: aggregate with caution

The potential pitfalls for public authorities are illustrated by Pringle v IC and Bury MBC (EA/2012/0062), where the Tribunal overturned a s. 14(1) decision. The case concerned a prominent site, the Longfield Suite in Prestwich, to which the local “Save our Suite” group was committed. Mr Pringle was a member of that group; his one and only request for information had 11 parts, some of which apparently chimed with the group’s history of requests about business plans for the Suite.

The Council’s s. 14 decision was based on this collective pattern of requests and its resultant burden. On the evidence, however, the Tribunal found that the Council and the IC had too readily treated Mr Pringle’s requests together with those of the campaign group, and had given too much weight to questions asked through other fora, such as public meetings, the Audit Commission and the local MP. These were “legitimate avenues of enquiry, outside of the Freedom of Information Act and necessary in a democratic society.” The Council had also failed to ask Mr Pringle to narrow his request, and had not sought to answer as much of the 11-part request as possible.

One-man investigations can cross the line

In contrast, in Bragg v IC and Babergh DC (EA/2012/0107), the Tribunal upheld a refusal based on regulation 12(4)(b) of the EIR. The Council had taken enforcement action, culminating in an injunction and consent order, against a landowner (not the requester) for impermissible use of a private airfield.

The requester sought information about the enforcement and associated legal actions, his belief being that information was improperly withheld during disclosure for a planning inquiry. He questioned the “honesty and integrity” of the witnesses and argued that there was nothing in the EIR to prevent it being used as an investigative tool for the exposing of what the requester alleged was unlawful conduct which the public authority had covered up.

The Tribunal was unimpressed by his allegations. It concluded that:

“The Appellant has not challenged the High Court decision… by way of any of the routes of challenge such as judicial review or even direct complaint to the police and/or the Crown Prosecution Service. He appears to have set himself up as an investigator of wrongdoing that he perceives but he has not allowed other more appropriate bodies to investigate and consider any of the issues he believes lie at the heart of his information requests.”

The Tribunal found that he had crossed the thin line between persistence and obsession, straying into unreasonableness and becoming hectoring in his tone of enquiry in his 14 requests to the Council.

The Tribunal also took into account that Babergh District Council is a small public authority, with limited resources to devote to information requests.

Interestingly, the Commissioner submitted that, because this request was vexatious, the requester was not entitled to seek the same information in future requests. Here the Tribunal disagreed: “If the request is made several years from the date of the original there may well be entirely different considerations in play. At the very least, whether the request could be regarded as manifestly unreasonable after the passage of several years without other requests on the same matter in the intervening period would have to be re-examined and judged on the facts at that time”.

Conspiracy theories: groups and individuals

The Tribunal’s decision in Beswick v IC and Thames Valley Police (EA/2012/0040) draws together some of the themes discussed above. The requester sought information about the position in which the body of Dr David Kelly, the weapons inspector whose death in 2003 was investigated by the Hutton Inquiry, was found. He contributed to online discussion groups focusing on suspicions about Dr Kelly’s death and dissatisfaction with the conclusions of the Hutton Inquiry. Some other members of those groups had also made requests for related information to the same police authority. It contended that these requests were made in concert, and that this reinforced its reliance on s. 14 in refusing Mr Beswick’s request.

The Tribunal’s approach was first to consider Mr Beswick’s request in isolation. It noted the Commissioner’s long-standing five-part guidance on applying s. 14, but “felt that there was a compelling counter-argument that the Commissioner’s guidance should not even guide the Tribunal’s deliberations since this might have the appearance of giving  the approach of one party a higher status than those from the other parties”. The same point was made by the Tribunal in E Rex Makin v IC and Legal Services Commission (EA/2011/0163).

The Tribunal in Beswick did, however, derive assistance from the sorts of questions considered by the Tribunal in the oft-cited case of Rigby v IC and Blackpool NHS Trust (EA/2009/0103); [2011] 1 Info LR 643. These questions include: whether the request formed part of an extended and unfounded campaign to expose alleged improper or illegal behaviour, whether there was a tendentious and haranguing tone, whether the request indicated obsessiveness and the overall burden imposed (by Mr Beswick’s requests only, excluding those of the other members of the online discussion groups). By applying these factors and in light of the Hutton Inquiry’s conclusions, the police’s reliance on s. 14 was upheld.

Unreasonable burden can suffice for a s. 14 finding

Historically, the Commissioner and Tribunal have been reluctant to support reliance on s. 14(1) for reasons solely attributable to the cost and burden of compliance with the request. It was felt that s. 12 was intended to cater for those concerns. The costs of redaction, however, cannot be taken into account for s. 12 purposes. In Salford CC v IC and TieKey Accounts (EA/2012/0075), the Council sought to rely on s. 14 to argue that the burden imposed by the redactions that were likely to be required in order to comply with the request was unreasonable and disproportionate. The Commissioner initially disagreed, but – following the decision Independent Police Complaints Commission v IC (EA/2011/0222) – agreed that cost burden alone could support reliance on s. 14. The Tribunal in Salford agreed, and the Council’s appeal was allowed.

The evolving approach

As the above decisions illustrate, there is no uniform approach to s. 14 at a Tribunal level. The Commissioner’s five guiding questions remain helpful, but Tribunals are increasingly disinclined to give them much weight at all. A broader, dictionary-definition approach is preferred by some Tribunals, who ask simply whether the request tends to cause unjustified trouble or interference (see for example Graham and Ainslie). The questions posed in Rigby can, depending on the case, be very instructive. There is an increasingly strong case for giving the cost burden serious weight under s. 14.

Two upcoming developments should be followed with care. First, the Commissioner is in the process of revising his guidance on how to approach s. 14. Secondly, the Upper Tribunal is to hear a number of appeals on these issues together in the coming weeks: Ainslie, Dransfield and Craven. Its decision will hopefully bring some clarity to these issues.

In general however, most cases of this type turn on the quality of the evidence and the public authority’s efforts to be reasonable. That is likely to remain true whatever these new developments bring.

Robin Hopkins

“MANIFESTLY UNREASONABLE” REQUESTS UNDER THE EIR: RELEVANCE OF COST OF COMPLIANCE AND DUTY TO ADVISE AND ASSIST

January 3rd, 2011 by Robin Hopkins

Little v ICO and Welsh Assembly Government (EA/2010/0072) is the latest application of the principles in DBERR v IC and Platform (EA/2008/0096) concerning “manifestly unreasonable” requests under regulation 12(4)(b) EIR. In particular, it deals with a public authority’s reliance on that exemption based on the excessive time which would be required to comply with the request.

The Tribunal confirmed that manifest unreasonableness – whilst not a condemnatory term - did imply a higher threshold than mere unreasonableness. A certain obviousness was required. Beyond that, no more precise definition could be given, and terms such as “self-evidently” were not applicable. The cost of compliance is relevant, but only as one factor among many. A request may be manifestly unreasonable if the cost of compliance is disproportionate the importance of the issue, or if compliance would divert resources so as significantly to disrupt the public authority’s normal activities. These, however, are only examples, and each case must be decided on its own facts. On the facts of this case (which concerned information on the disposal of land owned by Forestry Commission Wales for the purposes of wind farm development) the requests were manifestly unreasonable.

Two points of general interest emerge.

First, the “cost of compliance” provision under section 12 FOIA may not be used as a yardstick for determining manifest unreasonableness under regulation 12(4) EIR. The provisions are entirely separate, and one offers no guidance on the other.

The second is that compliance with the duty to advise and assist under regulation 9 EIR is a precondition for reliance on regulation 12(4)(c) (the exemption applicable where a request is too general) – but not for reliance on manifest unreasonableness under regulation 12(4)(b). This does not mean, however, that the duty to advise and assist is irrelevant to regulation 12(4)(b). The Tribunal was clear that “a public authority should expect, in the appropriate case, to have to engage with the request, and the requester, to consider whether a more manageable and reasonable formulation of the request can be achieved, before refusing a request for being manifestly unreasonable”.

The Tribunal also observed that the preparation of a 20-page list of files which might contain the requested information was not required under regulation 9 in this case – but once such a list has been prepared, the failure to provide the requester with a copy might cast a public authority’s efforts under regulation 9 in an unfavourable light.