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

Vexatious and manifestly unreasonable requests: definitive guidance from the Upper Tribunal

February 7th, 2013 by Robin Hopkins

Public authorities often have cause to consider whether to treat requests for information as vexatious (section 14 of FOIA) or manifestly unreasonable (regulation 12(4)(b) of the EIR). Precise definitions of those terms are difficult to pin down. They are not supplied by legislation. There is no binding authority from appellate courts or tribunals on their meaning in the information rights context. The Information Commissioner’s guidance is long-standing, but First-Tier Tribunals vary in the extent to which they use that guidance.

In three distinct but related decisions published today, the Upper Tribunal (Judge Wikeley) has filled this gap, providing what is (for now) the definitive, binding guidance on what vexatiousness and manifest unreasonableness mean in this context, and how reliance on those provisions should be approached. The cases are Dransfield, Craven and Ainslie, with Dransfield serving as the lead case (for summaries of the first-instance decisions, use Panopticon’s search function).

The key principles of general application are summarised below, followed by observations on the three specific appeals.

What kind of a creature is section 14 of FOIA?

Section 14 is not stricly speaking an ‘exemption’. The purpose of the exemptions in Part 2 of FOIA “is to protect the information because of its inherent nature or quality. The purpose of section 14, on the other hand, must be to protect the resources (in the broadest sense of that word) of the public authority from being squandered on disproportionate use of FOIA (to that extent I agree with the observations of the FTT in Lee v Information Commissioner and King’s College Cambridge EA/2012/0015, 0049 and 0085 at [50])… To that extent, section 14 of FOIA operates as a sort of legislative “get out of jail free card” for public authorities. Its effect is to relieve the public authority of dealing with the request in issue, except to the limited extent of issuing a refusal notice as required by section 17. In short, it allows the public authority to say in terms that “Enough is enough – the nature of this request is vexatious so that section 1 does not apply.”” (Dransfield, paras 10-11).

What does ‘vexatious’ mean in this context?

“’Vexatious’ is a protean word, i.e. one that takes its meaning and flavour from its context.” The dictionary definition is only a starting point: irritation or annoyance alone does not suffice – public scrutiny may be irritating or annoying to some, but it is the essence of FOIA.

“The question ultimately is this – is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA?” (Dransfield, para 43).

Guidance and illustrations

Judge Wikeley offered illustrative guidance under four headings (see the discussion at paras 28-39 of Dransfield). At para 28, he said this:

“Such misuse of the FOIA procedure may be evidenced in a number of different ways. It may be helpful to consider the question of whether a request is truly vexatious by considering four broad issues or themes – (1) the burden (on the public authority and its staff); (2) the motive (of the requester); (3) the value or serious purpose (of the request) and (4) any harassment or distress (of and to staff). However, these four considerations and the discussion that follows are not intended to be exhaustive, nor are they meant to create an alternative formulaic check-list. It is important to remember that Parliament has expressly declined to define the term “vexatious”. Thus the observations that follow should not be taken as imposing any prescriptive and all encompassing definition upon an inherently flexible concept which can take many different forms.”

Background and context can be highly relevant. As to burden, questions of volume, breadth, pattern and duration of requests may be relevant. Note, however, that volume alone might not be decisive. Furthermore, an individual request can be vexatious.

While FOIA is axiomatically motive blind, “the proper application of section 14 cannot side-step the question of the underlying rationale or justification for the request” (Dransfield, para 34).

Series of requests can sometimes start out innocuously, but fall into “vexatiousness by drift” (Dransfield, para 37).

As to serious purpose or value, “the weight to be attached to that value or serious purpose may diminish over time. For example, if it is truly the case that the underlying grievance has been exhaustively considered and addressed, then subsequent requests (especially where there is “vexatiousness by drift”) may not have a continuing justification” (Dransfield, para 38).

Notes of caution

Judge Wikeley confirmed that the term ‘vexatious’ here applies to the request, not the requester (Dransfield, para 19).

He also warned that the right to deem a single request vexatious “should not be seen as giving licence to public authorities to use section 14 as a means of forestalling genuine attempts to hold them to account” and that “a lack of apparent objective value cannot alone provide a basis for refusal under section 14, unless there are other factors present which raise the question of vexatiousness. In any case, given that the legislative policy is one of openness, public authorities should be wary of jumping to conclusions about there being a lack of any value or serious purpose behind a request simply because it is not immediately self-evident” (Dransfield, paras 36 and 38 respectively).

Where does this leave the Commissioner’s guidance?

The guidance remains valuable, but the ‘five factors’ are at best ‘pointers to potentially relevant considerations’; they are a means to an end (the end being the ‘ultimate test’ – see above) (Dransfield, paras 39-45).

Is the test for ‘manifest unreasonableness under the EIR any different?

A short answer: no (Craven, para 30).

Regulation 12(4)(b) is different to section 14 in three ways. “First, section 14 excuses the public authority from responding, but is not formally a FOIA exemption, whereas regulation 12(4)(d) is structurally an exception under the EIR. Second, the EIR provision is expressly subject to a public interest test. Third, under the EIR there is a presumption in favour of disclosure (see regulation 12(2))” (Craven, para 19).

However, the approach to this provision is the same as the approach to section 14 of FOIA (see above), both for analytical reasons and pragmatic ones (if the approach is the same, the question of which regime applies need not be analysed).

Unlike FOIA, the EIR do not have a separate exception for cost of compliance. Regulation 12(4)(b) is the provision relied upon when the cost of compliance is disproportionate. What about FOIA? Can section 14 be used even where section 12 might also have been an option (as has been argued at First-Tier level: see the IPCC and TieKey cases, for example)? The Upper Tribunal’s answer is yes, it can. Judge Wikeley did, however, say this (Craven, para 31):

“Notwithstanding the above, if the public authority’s principal reason (and especially where it is the sole reason) for wishing to reject the request concerns the projected costs of compliance, then as a matter of good practice serious consideration should be given to applying section 12 rather than section 14 in the FOIA context. Unnecessary resort to section 14 can be guaranteed to raise the temperature in FOIA disputes. In principle, however, there is no reason why excessive compliance costs alone should not be a reason for invoking section 14, just as may be done under regulation 12(4)(b), and in either case whether it is a “one-off” request or one made as part of a course of dealings.”

The outcomes in the individual appeals

In Dransfield (which concerned a series of requests about lightning protection measures), the appeals by the Commissioner and the public authority succeeded. The request fell within section 14. Judge Wikeley concluded inter alia that:

“I have no hesitation in accepting Mr Cross’s primary submission. The FTT adopted too restrictive an approach to the application of section 14 in paragraphs [31]-[38] of the reasons for the decision. In particular, the FTT relied on an unwarranted distinction between two types of case in which there has been a past course of dealings. The FTT’s view was, in effect, that where the link between the request in issue and the previous course of dealing was one of subject matter alone, then the public authority could not treat the request as vexatious on the basis of that course of dealing, whatever other considerations might suggest. On the FTT’s approach, there had to be some “underlying grievance”, not simply a “similarity of subject matter” in order for section 14 to bite.”

In Craven (which concerned a series of requests about high voltage electric cables), the requester’s appeal was allowed on the questions of adequacy of reasons and the failure of the FTT to set out the reasons for the dissenting minority view, but the Upper Tribunal re-made the decision and concluded that section 14 and regulation 12(4)(b) had been correctly applied by the public authority.

In Ainslie, the requester’s appeal was allowed. He was found to have been acting firmly in the public interest, and “the FTT failed to find sufficient facts, and in particular to resolve certain important disputed issues on the evidence before it, and in doing so failed to provide adequate reasons for its decision” (Ainslie, para 26).

Other important points

These decisions also contain a number of points of general application beyond the vexatiousness context. All those involved in Tribunal litigation should note the following points.

The Upper Tribunal has held that, where a FTT decision is a majority one rather than unanimous, the FTT will err if it fails to set out the reasons for the minority view (Craven, para 42).

Further, while not a new point, the Upper Tribunal has confirmed the importance of FTTs giving adequate reasons (whether unanimous or majority decisions) to allow parties to know why they won or lost.

Judge Wikeley has cautioned that strike-out applications in information rights matters should not be resorted to lightly, but should only follow careful consideration (Craven, para 94).

Where section 14 or regulation 12(4)(b) are relied upon, “every effort should be made to ensure that the parties can participate in an oral hearing. This allows the relevant issues to be properly explored in a way that is simply not always possible on the papers” (Craven, para 95).

Tribunals should also be “more alive to the importance of making their processes accessible to ordinary citizens acting without the benefit of professional representation… was the request vexatious or manifestly unreasonable (or not)? The appellate process in such a case needs to focus on that question, rather than indulge in legalistic point-scoring. Tribunals are for users, after all, not just (if at all) for lawyers” (Craven, para 96).

Finally, Judge Wikeley observed that the preponderance of section 14 cases at Tribunal level was no reflection on the general usage of FOIA. At para 83 of Dransfield, he made this observation:

“As the American legal theorist Professor Karl Llewellyn wisely observed, litigated cases are inherently “pathological”; they bear the same relation to the broader set of disputes “as does homicidal mania or sleeping sickness, to our normal life” (The Bramble Bush (1960), p.58).”

For those who spend much of their life litigating, these last points are food for thought.

Tom Cross appeared for the Commissioner in all three appeals. Rachel Kamm and James Cornwell appeared for the public authorities in Dransfield and Craven respectively.

Robin Hopkins

IPCC v IC: IMPORTANT NEW DECISION ON VEXATIOUS REQUESTS AND COST OF COMPLIANCE

April 4th, 2012 by Robin Hopkins

 

The First-Tier Tribunal’s recent decision in Independent Police Complaints Commission v IC (EA/2011/0222) is very interesting and important. It concerns sections 14 (vexatious requests) and 12 (cost of compliance) of FOIA. The Tribunal has confirmed in resounding terms that cost alone can justify a section 14 finding, that a requester’s improper motive is relevant for section 14 purposes, and that the principle of aggregation of costs across separate requests is to be interpreted widely. On all these points, this decision will be welcomed by public authorities responding to unduly burdensome FOI requests.

The case concerned a requester with a keen interest in the work of the IPCC. The Tribunal said that his pattern of requests “focussed on no particular topic but appeared to range widely, even indiscriminately, over the whole spectrum of complaints that the IPCC investigates”. In particular, this case was concerned with two requests. One asked for IPCC managed investigation reports over a 3-year period (covering some 438 cases), the other was a multi-part request about a specific case which had been the subject of an earlier request. The IPCC had clearly had enough. It applied section 14 in refusing both requests.

While the Commissioner sympathised with aspects of the IPCC’s position (cost burden in particular), his overall conclusion – based on his five guiding questions for section 14 cases – was that the requests were not vexatious.

At Tribunal level, the IPCC relied on both section 14 and section 12. The Tribunal found in its favour on both counts.

Section 14 (vexatious requests)

On vexatious requests, the decision is worth quoting in some detail. At paragraph 14, it – like a number of Tribunals in recent cases – disapproved of an overly rigid application of the Commissioner’s five questions:

“The Tribunal considers that these requests were plainly vexatious when considered in the context of earlier requests or indeed in isolation. The criteria proposed in the ICO`s guidance are very helpful as a reference point. However, an approach which tests the request by simply checking how many of the five “boxes” are “ticked” is not appropriate. It is necessary to look at all the surrounding facts and apply them to the question whether the request is vexatious, a term not defined in FOIA but familiar to lawyers.”

It also found that cost alone can suffice for a section 14 finding – see paragraph 15:

“A request may be so grossly oppressive in terms of the resources and time demanded by compliance as to be vexatious, regardless of the intentions or bona fides of the requester. If so, it is not prevented from being vexatious just because the authority could have relied instead on s.12”.

This will be welcomed by those who find themselves unable to rely on section 12 due to the restricted list of activities which can be taken into account for cost purposes.

While cost can suffice regardless of motive, the Tribunal was emphatic that motive is relevant for section 14 purposes. In trenchant terms, it urged responsible use of FOIA (see paragraph 19):

“Abuse of the right to information under s.1 of FOIA is the most dangerous enemy of the continuing exercise of that right for legitimate purposes. It damages FOIA and the vital rights that it enacted in the public perception. In our view, the ICO and the Tribunal should have no hesitation in upholding public authorities which invoke s.14(1) in answer to grossly excessive or ill – intentioned requests and should not feel bound to do so only where a sufficient number of tests on a checklist are satisfied.”

In the present case, the Tribunal was not convinced of the requester’s good faith, and it considered his requests to be “not just burdensome and harassing but furthermore wholly unreasonable and of very uncertain purpose and dubious value, given the undiscriminating nature of the first request”. It had no hesitation in finding that section 14 had been correctly applied to the first request.

Section 12 (cost of compliance)

This provision was relied upon by the IPCC for the first time before the Tribunal. Interestingly, the Tribunal interpreted the Court of Appeal’s judgment on the late reliance issue (under the EIRs) in Birkett as meaning that the IPCC could rely on section 12 of FOIA late as of right – despite the Upper Tribunal’s rather different approach in APPGER (which is not referred to in this decision).

It was agreed that the cost limit was reached for the first request. The issue was whether section 12 applied to the second request. This turned on whether the costs of complying with that request could be aggregated, ie taken together with those for the first. Aggregation is provided for under the Information and Data Protection (Appropriate Limits and Fees) Regulations 2004. By regulation 5(2)(a), costs can be aggregated for requests which “relate, to any extent, to the same or similar information”. The Tribunal agreed with the IPCC that the requests in this case came within that provision. It said as follows (paragraphs 25-26):

“The second request was for specific details of a report which was a subject of an earlier request than those with which this appeal is concerned. It was the same kind of report as the 438 reports requested in the first request. We agree with the IPCC that the wording of Regulation 5(2) (a), for good reason, requires only a very loose connection between the two sets of information, hence the insertion of “to any extent” and “similar”. The information covered by the second request was quite obviously very similar in character to that described in the first. They were simply different reports.”

From a public authority perspective, this broad approach will be a welcome departure from the more restrictive analysis in cases such as Benson.

For a different take on the IPCC case, see this post from the ever-incisive FOI Man.

Robin Hopkins

COMPLAINT AGAINST SENIOR COUNCIL OFFICER: TRIBUNAL OVERTURNS VEXATIOUS REQUEST FINDING

March 10th, 2012 by Robin Hopkins

In many cases concerning s. 14(1) of FOIA – vexatious requests – a relevant factor is that the requester has complained about the conduct of an employee, but that complaint has not been upheld. Ensuing requests are often considered by some to be harassing and obsessive. The Tribunal has recently overturned a decision notice in which the Commissioner had agreed with the local authority on those points.

Conway v IC (EA/2011/0224) concerned a requester who had been in communication with the Council for some years, in the course of which he had raised concerns that the role of “Senior Responsible Officer” and the “Section 151 Officer” were held by the same individual, which, in his view, represented a conflict of interests. His complaint to the Chartered Institute of Public Finance & Accountancy was not upheld. He had sight of the redacted version of its investigation report. He then contacted the Council with a number of detailed questions about its input into the Institute’s investigation.

The Council refused the request, relying on s. 14(1). The Commissioner agreed. The Tribunal did not.

The Tribunal found that “harassing” should be given its ordinary meaning, that is, to disturb persistently, bother continually, pester or persecute. In this case, the Council officer concerned was very senior; the subject matter concerned a high profile project that involved many millions of pounds of public money over 10 years. This had attracted a high degree of public interest in the press and on the internet. The Tribunal found that, in such circumstances, the public is likely to raise questions, and “such questions may be numerous and may on occasion be repeated”. It was not satisfied that a “harassing effect” had been demonstrated. The present case was, in the Tribunal’s view, entirely unlike the leading s. 14 case of Rigby v IC and Blackpool NHS Trust [2011] I Info LR 643.

The Council had also argued that the requester’s complaint giving rise to the Institute’s investigation constituted harassment of the senior Council officer. The Tribunal disagreed: it found “no evidence of a personal attack or comments of a provocative nature made by the Appellant against the named council employee”.

The Tribunal also disagreed that the request was obsessive: the request was concise and precise, and arose out of the Institute’s report which had recently been received – in those circumstances, the Tribunal could not see any relevant context or history which would demonstrate obsessiveness.

The Tribunal also observed that “whether the request creates a “strain on resources”, that is not relevant to the question of whether it is vexatious. If the Council wished to argue that they ought not to be required to comply with the request on this basis, then it ought to have relied on section 12 FOIA. It did not do so.”

The Council was ordered to deal with the

Robin Hopkins

UPDATE ON RECENT TRIBUNAL DECISIONS

January 11th, 2012 by Rachel Kamm

The First Tier Tribunal (Information Rights) has had a busy start to 2012, with 7 decisions on its website already.

The first judgment out was Herbert v ICO and West Dorset District Council, EA/2011/0157. The appellant sought correspondence concerning the transfer to the Council of property previously owned by Lyme Regis Borough Council. The Council refused the request on ground that it was vexatious. The history of this case related to incidents and disputes regarding a different matter, between the appellant and the Council dating back to 1992, which culminated in 1996 when the Council revoked a license held by the appellant. The ICO agreed that the request was vexatious. The appellant submitted that he had a genuine interest in the history of Lyme Regis and that he believed that some historical documents were missing from the National Archives and that they had been retained by the Council because they related to illegally acquired property. The Council had previously allowed him to research their archives on another matter and he wished to be able to do so again to look for these missing documents. He said that he had expected the ICO to contact him so that he could put forward further arguments. The FTT agreed with the ICO and the Council that the request had been made under FOIA (and not the EIRs). The FTT set out the key principles that have been applied by Tribunals in considering whether requests were vexatious under s14 FOIA. The FTT considered the background and found that the appellant’s request was obsessive. Further, the request had the effect of harassing the Council (even though the language was not hostile), as allegations of illegality and impropriety were made at the same time as the requests and there was a context of a high volume of correspondence. The Council had made extraordinary efforts to accommodate the appellant’s requests over a considerable period of time and valuable resources of time and effort have been used which could otherwise have been used more productively. In the view of the FTT, to accommodate this request would constitute a further and significant burden on the Council. The FTT concluded that the request was vexatious.

The next decision to be promulgated was King v ICO, EA/2010/0126. The appellant sought from the ICO records of complaints where Crawley Borough Council had failed to comply with FOIA/EIRs and the ICO never served a ‘decision notice’. The ICO refused the request on ground that the information  consisted of ‘third party information’ that was exempt from the requirements of disclosure. It did not identify the exemption relied on for refusing to disclose the information. However, it did provide the appellant with a summary of the information requested. Further information was provided by the ICO in response to the appellant’s request for a review of the decision. The appellant then asked for the information with just the personal details of individuals removed. The ICO refused, citing s.44 FOIA, as exempting information that is prohibited from disclosure under another Act, namely s.59 DPA (which prevents disclosure of information collected in the course of an investigation where there is no lawful authority to do so). The appellant requested  review of this decision. In subsequent correspondence, the ICO  relied on s.40 FOIA (the data protection exemption). The appellant then asked the ICO to make a decision under s.50 FOIA as to whether it had complied with the Act. Having previously been acting in its capacity as a body which was itself subject to FOIA, the ICO then changed back to its normal hat. The ICO said that it was reversing its decision and it provided the appellant with the  letters which had been sent to the Council in the cases alleging non-compliance with FOIA, with personal data redacted. The appellant disputed that this resolved his request; he also wanted the documents from the individuals making complaints and from the Council. The ICO denied that these had been within the scope of his original request. The ICO subsequently issued a decision notice stating that it had provided the appellant with the information requested, but that it had breached FOIA (including by not holding an internal review at the right stage, by not providing the information at the outcome of the internal review and by not acting within the time-scales in the Act). The appellant appealed, arguing that the ICO had not provided all information which fell within the scope of his request, had misinterpreted his request and had breached the duty to provide advice and assistance. In relation to the scope of the request, the FTT criticised the ICO for not having properly analysed the request but found that in fact it had provided all information that fell within the scope of the request. The appeal therefore failed. The FTT also found that the ICO was not in breach of the duty to provide advice and assistance; the appellant argued that the ICO should have asked him to clarify his request, but the FTT found that this was not necessary because the request was in any event clear and adequately specified the information sought. This case very much turned on its facts, but it is interesting to see the application of FOIA to the ICO as a public authority and it is also a useful reminder to carefully read the request from the outset.

The third decision out in 2012 was Newcastle Upon Tyne Hospital NHS Foundation Trust v ICO, EA/2011/0236. This appeal was struck out because the judge considered that there was no reasonable prospect of it succeeding. The disputed information was statistics about the number of people dismissed over a three year period. The Trust refused to provide the information, on ground that it was reasonably accessible (s.21 FOIA) by way of an application in the employment tribunal litigation. The Trust subsequently provided the information voluntarily. The ICO found that the Trust had misapplied s.21 FOIA. The Trust appealed, arguing that “The point at issue is one of prioritising the correct forum by which information is provided. The Trust point is that once proceedings are issued, the correct forum lies within the proceedings that have been issued, in this case the Employment Tribunal“. Not surprisingly, the judge found that this argument had no reasonable prospect of success. FOIA rights are not put on hold if there is litigation between the parties. Further, information obtained under FOIA can be used for any purpose whereas information obtained in litigation can only be used for that purpose and so litigation disclosure is not an answer.

Cross v ICO, EA/2011/025 is also a strike out decision. The appellant sought from Havant Borough Council a building control decision notice, plans and inspection records relating to a loft conversion to his home carried out in 1987. The Council refused the request under the EIRs, on ground that it was not held at the time of receipt of the request. The appellant believed that he had seen these documents on a visit to the Council and that, whilst it was possible that they had subsequently disappeared, his appeal should not be struck out. However, the Council had conducted a six day trawl for the information and the judge found that it was obviously willing to provide the information if it could be found. The appeal was therefore struck out as having no reasonable prospect of success.

Finally, in Martyres v ICO and NHS Cambridgeshire, EA/2011/020, the FTT dismissed an appeal by an appellant who sought all information held by NHS Cambridgeshire (and its relevant community services provider), in respect of her deceased mother who had died on 29 August 2009 including information about the care received by her mother at a care home she was staying at prior to her death. The appellant argued that she was the next of kin, proposed executor and trustee of one of the Wills and had a valid claim against her mother’s estate under the intestacy  rules. In relation to s.41 (FOIA), the FTT found that the information was obtained from another person (social care professionals), it possessed the necessary quality of confidence and disclosure would constitute such an actionable breach of confidence. The FTT further concluded that s.21 FOIA did not apply, in that the appellant would not have been able to obtain the disputed information under the Access to Health Record Act 1980 (as the appellant claimed); whilst she was the nearest relative, she was not the personal representative. The FTT also dismissed the appellant’s arguments under the Human Rights Act 1998.

Rachel Kamm

FROM NAKED PHOTOS TO NUCLEAR ENRICHMENT: ROUNDUP OF NEW TRIBUNAL DECISIONS

September 26th, 2011 by Robin Hopkins

The past week saw a slew of new decisions from the First-Tier Tribunal. Here is Panopticon’s highlights package.

Sections 41 (information obtained in confidence) and 43 (commercial prejudice)

In DBIS v IC and Browning (EA/2011/0044), the requester (a Bloomberg journalist) had sought information from the Export Control Organisation in connection with licences issued for the exporting to Iran of “controlled goods” – explained by the Tribunal as “mainly military, dual use (potentially military), equipment designed for torture or repression or sources of radio-activity”. The relevant public authority, the Department for Business, Innovation & Skills, refused the request, relying on sections 41 and 43. The IC found for the requester on the narrow basis that, whilst disclosure would result in a breach of confidence, no commercial detriment would be suffered by the licence applicants as a result. Subsequent evidence from the Department persuaded the IC to change position and support the appeal, which was resisted by the applicant. In a decision which turned on the evidence, the Tribunal allowed the appeal, and found both sections 41(1) and 43(2) to be effective.

Section 42 (legal professional privilege)

Two recent decisions on this exemption. Both saw the Tribunal uphold the refusal, applying the established approach under which this exemption has a strong in-built public interest. Szucs v IC (EA/2011/0072) involved an FOIA request about an earlier FOIA request (the appellant requested the legal advice and associated documents provided to the Intellectual Property Office about how to deal with a previous FOIA request made by the appellant’s husband). Davis v IC and the Board of Trustees of the Tate Gallery (EA/2010/0185) is eye-catching primarily because it concerned the Tate’s legal advice concerning the inclusion in an exhibition of a photograph of the actress Brooke Shields, aged ten, naked, entitled “The Spirit of America” (the Tate had initially proposed to include this in an exhibition, but ultimately withdrew the photograph).

Section 40 (personal data)

Beckles v IC (EA/2011/0073 & 0074) concerned the identifiability of individuals from small sample sizes, in the context of information about dismissals, compromise agreements and out-of-court settlements. The appellant asked Cambridge University for information on (among other things) the number of employees who received post-dismissal settlements. The answer was a low number. He asked for further details concerning the settlement amounts, rounded to some appropriate non-exact figure. This, said the Tribunal (applying the Common Services Agency/Department of Health approach to identifiability from otherwise anonymous figures) was personal data, the disclosure of which would be unfair. Its reasoning is summed up in this extract:

“Information as to the settlement of a claim made by an identified individual relating to his or her employment is undoubtedly personal data. The question is whether the four individuals or any of them could be identified if the information requested were disclosed, even in approximated form…. Cambridge University is made up of a large number of much smaller academic or collegiate communities. It is likely that a number of colleagues or friends will be aware that a particular individual settled a claim with the University within the time-scale specified. They will be aware of the general nature of that person`s employment. This is a small group of claims in a relatively short period. In the form originally requested it is readily foreseeable that one or more of the four will be identified.”

Sections 24 (national security) and 27 (international relations)

Burt v IC and MOD (EA/2011/0004) concerned information gathered by staff of the UK Atomic Weapons Establishment on an inspection visit to a United States atomic energy facility, as a learning exercise regarding the proposed development of an enriched uranium facility at Aldermaston. The US had expressed its desire to maintain proper confidence in what it regarded as a sensitive area. The MOD refused the request, relying on sections 27 and 24. By the time of the appeal, only a small amount of information had not been disclosed. This was primarily of a technical nature, containing observations about the operation of plant, machinery, procedures and processes at the US facility.

The Tribunal upheld the MOD and Commissioner’s case as regards the outstanding material. As regards section 27, the Tribunal applied the principles from Campaign against the Arms Trade v IC and MOD (EA/2006/00040). It observed, however, that confidential information obtained from another country would not always be protected by section 27: it was “perhaps axiomatic that the foreign State will take the United Kingdom as it finds it including but not limited to the effect of its own domestic disclosure laws. It follows that there may well be cases where information otherwise imparted in confidence from a foreign State to a United Kingdom authority would need to be considered on its own merits as to whether some form of disclosure should be made or ordered whether under FOIA or under similar analogous legislation or principles such as the UK data protection principles.”

As regards section 24, the Tribunal applied Kalman v IC and Department of Transport (EA/2009/0111) (recourse to the exemption should be “reasonably necessary” for the purpose of safeguarding national security), and Secretary of State for the Home Department v Rehman [2003] 1 A 153 (the threat to national security need not be immediate or direct).

Burt is also an example of a “mosaic effect” case: taken in isolation, the disputed information may appear anodyne, but the concern is with how it might be pieced together with other publicly available information.

Section 14(1) FOIA (vexatious requests)

Dransfield v IC (EA/2011/0079) is an example of the Tribunal overturning the Commissioner’s decision that section 14(1) had been engaged (for another recent example, see my post here). As with many such cases, the history and context were pivotal. Given that it is the request, rather than the requester, which must be adjudged to be vexatious, how should the context be factored in? The Tribunal gave this useful guidance:

“There is, however, an important distinction to be drawn between taking into account the history and context of a request, as in the cases referred to above, and taking into account the history and context of other requests made by a requester or other dealings between the requester and the public authority. The former is an entirely proper and valid consideration. The latter risks crossing the line from treating the request as vexatious, to treating the requester is vexatious. That line, in our view, was crossed in the present case.”

Robin Hopkins

VEXATIOUSNESS IN CONTEXT – ‘RATCATCHER’ AND OTHERS

August 18th, 2011 by Robin Hopkins

There have been two Tribunal decisions this week on s. 14 FOIA – vexatious requests. In both cases, the public authority and the Commissioner had found that s. 14 applied because of the context of the particular request. In one case, the Tribunal agreed: the context involved the requester acting in concert with others in pursuing a targeted campaign of requests. In the other, the Tribunal found that the Commissioner and the public authority had placed too much weight on the context, and had given insufficient consideration to the particular request.

The Appellant in Duke v IC and University of Salford (EA/2011/0060) had been dismissed by Salford University. He contended that his requests for information had a serious purpose connected to a forthcoming Employment Tribunal. Between the end of October 2009 and early February 2010, the University received over 100 requests for information – submitted by 13 individuals – all but three of which were submitted via the WhatDoTheyKnow.com website. To put this pattern in context: during the whole of 2008, the University had received 117 requests submitted by 78 different requestors. The Appellant and others distributed satirical literature and maintained websites critical of the University. One of these was the ‘Ratcatcher’ blog. The University had sought disclosure of the author’s identity in the USA; in subsequent defamation litigation in the UK, the Appellant conceded that he was the author.

The University considered the requests to be a concerted attempt to disrupt its activities by a group of activists undertaking a campaign – effectively a Denial of Service attack in internet parlance. The Commissioner agreed. He also found that some of the requests to the University had been made under pseudonyms.

The Appellant had objected to the Commissioner’s holding of a meeting with the University prior to the issuing of the decision notice. On this, the Tribunal commented that:

“The decision of the IC to meet with the University, while it may be unusual, is within the IC’s powers of investigation. The Tribunal declines to characterise this as creating an inequality of arms that created any unfairness in respect of the Appellant. The IC was, after all, seeking to assess whether the Appellant had been characterised unfairly as vexatious.”

Given the context of the Appellant’s requests and his concerted campaign together with others, the Tribunal had no hesitation in upholding the IC’s findings. There is some further commentary on FOI Man’s blog here.

In contrast, the Tribunal in Gardner v IC and Nottingham City Homes Limited (EA/2011/0054) allowed the appeal, finding that the Appellant’s request had not been vexatious.

The Appellant has been a tenant of Nottingham City Council for more than 30 years. He requested information about public expenditure on neighbouring council flats; his belief was that more money had been spent on the upkeep of other properties than on his. The Commissioner found that, given the context and history of the requests, the Appellant had “stepped over the fine line between persistence and a request being obsessive and unreasonable”.

The Tribunal disagreed. It found that there had been too much focus on the history of relations with the Appellant and a resultant failure to consider the particular request – which the Tribunal considered plainly had a serious purpose – on its merits.

Interesting, the Tribunal did accept that the Appellant’s requests tended to have a harassing effect. In one letter, the Appellant had said this: “Beware the Ides of March, I will have my Retribution.” Nonetheless, this was insufficient to engage s. 14 in these circumstances.

PERSONAL DATA, REPEAT AND VEXATIOUS REQUESTS AND INVESTIGATIONS

June 7th, 2011 by Rachel Kamm

In Jeffery Lampert v IC and Financial Services Authority EA/2010/0203, the appellant was involved in a long running dispute with a bank, which had called on his guarantee of a loan and commenced bankruptcy proceedings against him. His MP had raised the matter with the FSA and the appellant believed that this had led to at least one investigation of the bank. The appellant subsequently made a freedom of information request for information held by the FSA recording the outcome of investigations into the bank about the matter and the calculation of the bank’s loss. The Information Commissioner found that any information falling within the scope of the request was the appllant’s personal data and therefore absolutely exempt from disclosure under FOIA. The First-Tier Tribunal found that:

  • there had been no investigation by the FSA of the bank and there was no document in existence which contained a calculation of the bank’s loss;
  • any information falling within the scope of the request would not have been the appellant’s personal data; applying Durantthe Commissioner was wrong to decide, in effect, that, merely because the information requested arose from the appellant’s complaints, it all constituted his personal data;
  • the FSA was entitled to rely on section 14(1) FOIA, in that this was a repeat request and a reasonable interval had not elapsed since the previous substantially similar request; and, further
  • there was ample material from which it could be found that the appellant’s request was vexatious.

In Public Prosecution Service for Northern Ireland v IC and John Collins EA/2010/0109, Mr Collins requested the PPS documentation (excluding names and addresses) relating to a particular criminal damage case. It was not in dispute that section 30(1) FOIA was engaged and the only issue for the First-Tier Tribunal was whether the public interest in maintaining the exemption outweighed the public interest in disclosure. The Tribunal accepted that it had to take into account the need for prosecutors to have a safe space in which to decide whether or not a case met the threshold for pursuing a prosecution, without fear of frank assessments being publicised after the event. Eroding this safe space would undermine the independence of prosecution authorities, compromise the quality of decision making, potentially deter witnesses from co-operating and undermine (without good reason) public confidence in those authorities. The Tribunal held that these factors attracted very substantial weight. The Tribunal found, having considered the disputed information, that there was no reason to suspect that the prosecuting authority had made substantial mistakes in this case. The public interest in maintaining the exemption therefore clearly outweighed the public interest in disclosure.

“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.

VEXATIOUS REQUESTS

June 24th, 2010 by Timothy Pitt-Payne QC

FOIA requesters can be very difficult to deal with. Some may bombard public authorities with requests, to the point where they disrupt the authority’s ordinary work, perhaps with an obsessive focus on a particular issue. Some will use FOIA to try and re-open matters that have already been examined in detail; and it is impossible to achieve closure, because each item of information provided simply becomes a starting-point for more questions. How should public authorities cope with this kind of behaviour?  The obvious recourse is to FOIA section 14(1), which enables a public authority to refuse to answer a request if it is vexatious.

The Information Commissioner has issued guidance on vexatious and repeated requests (last updated in December 2008), which identifies five questions:

- Can the request fairly be seen as obsessive?
- Is the request harassing the authority or causing distress to staff?
- Would complying with the request impose a significant burden?
- Is the request designed to cause disruption or annoyance?
- Does the request lack any serious purpose or value?

According to the Commissioner, a public authority should generally be able to make out a reasonably strong case under at least two of these headings, if it is to reject a request as vexatious.

Two recent Tribunal decisions consider whether requests were rightly treated as vexatious.

In Rigby v Information Commissioner and Blackpool, Flyde and Wyre Hospitals NHS Trust the requester’s underlying complaint was about his mother’s death in hospital. He complained to the Healthcare Commissioner about the treatment given, and they upheld the complaint and made a number of recommendations for action by the Trust. He then made a series of FOI requests about the implementation of those recommendations. The Trust eventually informed him that it would no longer correspond with him about his underlying complaint, and that it was invoking its “Vexatious Complaints Policy” (“the Policy”). The requester then made a FOIA request for information about the introduction and amendment of the Policy; this request was rejected as vexatious by the Trust. The Commissioner upheld the Trust’s position, and the requester appealed to the Tribunal.

The Tribunal set out some general principles at §§27-32. It considered that the Commissioner’s guidance, and the five considerations that it identified, were useful, although they should not lead to an overly structured approach.

 
The Tribunal referred to a number of the earlier cases, and set out the following principles:

• Section 14(1) is concerned with whether the request is vexatious in terms of the effect of the request on the public authority, and not whether the applicant is vexatious.

• In the absence of a definition of “vexatious” in FOIA, it must be assumed that Parliament intended the term to be given its ordinary meaning. By its ordinary meaning, the term refers to activity that “is likely to cause distress or irritation, literally to vex a person to whom it is directed”.

• The focus of the question is on the likely effect of the activity or behaviour. Is the request likely to vex?

• For the request to be vexatious, there must be no proper or justified cause for it.

• It is not only the request itself that must be examined, but also its context and history. A request which when taken in isolation, is quite benign, may show its vexatious quality only when viewed in context. That context may include other requests made by the applicant to that public authority (whether complied with or refused), the number and subject matter of the requests, as well as the history of other dealings between the applicant and the public authority. The effect a request will have may be determined as much, or indeed more, by that context as by the request itself. This is in marked contrast to other types of FOIA appeals where the Tribunal is said to be strictly applicant and motive blind.

• The standard for establishing that a request is vexatious should not be set too high. Equally, however, it should not be set too low. The judgment that section 14(1) calls for is balancing the need to protect public authorities from genuinely vexatious requests on the one hand, without unfairly constraining the legitimate rights of individuals to access information.

The Tribunal then gave a series of examples of considerations that had been held relevant in the decided cases, as follows:

• where the request forms part of an extended campaign to expose alleged improper or illegal behaviour in the context of evidence tending to indicate that the campaign is not well founded or has no reasonable prospect of success;

• where the request involves information which has already been provided to the applicant;

• where the nature and extent of the applicant’s correspondence with the authority suggests an obsessive approach to disclosure;

• where the tone adopted in correspondence by the applicant is tendentious and/or haranguing and demonstrates that the applicant’s purpose is to argue and not really to obtain information;

• where the correspondence could reasonably be expected to have a negative effect on the health and well-being of the employees of the public authority;

• where the request, viewed as a whole, appears to be intended simply to reopen issues which have been disputed several times before, and is, in effect, the pursuit of a complaint by alternative means;

• where responding to the request would likely entail substantial and disproportionate financial and administrative burdens for the public authority;

• where the same requests have been made repeatedly, or where on repetition, the particulars of the requests have been varied making it difficult to know exactly what the requester is seeking and making it less likely that the request can be satisfied; and

• where providing the information requested previously has tended to trigger further requests and correspondence, making it unlikely that a response ending the exchange of correspondence could realistically be provided.

The Tribunal agreed that this particular request was vexatious. On its face it was straightforward; but viewed in context it was part of a continuing campaign relating to the Trust’s treatment of  the requester’s mother, and that campaign had become obsessive. Any response would have been likely to trigger further requests. There had been numerous previous requests: according to the Commissioner, the Trust had fielded 56 separate requests from the Appellant on 16 different dates, though the requester disputed these figures. The Tribunal accepted that, whatever the requester’s intentions, the effect of his requests had been to vex, that is, to cause distress or irritation, given the language of the requests and the repeated allegations of bad faith against Trust employees.

In Young v Information Commissioner the requester was an individual who had been prosecuted and convicted. He subsequently made a number of complaints about his arrest and detention, which were considered by the Independent Police Authority. A FOIA request to the relevant police force was rejected as vexatious, and the Commissioner upheld the authority’s handling of the request. On appeal, the Tribunal approved the approach taken in Rigby at §§27-32. It considered that the request was obsessive, might in some respects involve harassment of the authority’s staff, and lacked serious purpose or value. On balance (though narrowly) the Tribunal accepted that the request was vexatious. However, the Tribunal emphasised that it was not suggesting that the requester was himself vexatious, and did not doubt that he sincerely believed himself to have been badly wronged.

The last point is important. Section 14(1) is about vexatious requests, not vexatious people. There is no power to treat someone as a vexatious requester (i.e. as a person who is no longer entitled to make FOIA requests to the authority). Each individual request must be considered on its merits. And of course the decision to treat a request as vexatious may lead to a complaint to the Commissioner, and then an appeal to the Tribunal. Hence, if a request is easy to answer, it may well be less time-consuming to respond to it rather than to treat it as vexatious – even where the latter course would be justifiable.