Asking too much?

For public authorities, dealing with vexatious requests under the Freedom of Information Act (FOIA) can be distressing, time-consuming and expensive. Staff can find themselves spending hundreds of hours fielding calls, processing correspondence and reviewing documents. In most cases, the costs of doing so are not recoverable.

Section 14 of FOIA says that public authorities do not have to comply with a request that is 'vexatious', 'identical' or 'substantially similar' to a request from the same person which has already been answered, unless sufficient time has elapsed. This sounds simple enough. The difficulty is that 'vexatious' is not a term of art, but rather a matter of fact and degree. Authorities must therefore balance the desire to prevent considerable inconvenience with the need to consider requests fairly.

First ICO decision on s 14

In March this year, the Information Commissioner's Office(ICO) published its keenly anticipated first Decision Notice on s 14 FOIA. The notice provides guidance to public authorities, many of whom have been reluctant to rely on s 14 as a basis for exemption.

The background to the decision was a series of FOIA requests made to Birmingham City Council about rights of way, footpaths and land use. Between January and March 2005 the Council received a multitude of questions on similar themes from the same individual (referred to here as 'Q'). At least 49 requests were logged and 22 of these were answered in full. Then, on 26 and 29 March, Q made another 27 similar requests. These the Council refused to answer in all but two cases, on the ground they were 'designed to cause considerable inconvenience, harassment and/or expense' and were therefore vexatious and subject to the exemption under s 14 of FOIA.

While refusing to answer the 26 and 29 March batch of questions, the Council did advise Q about his right to an internal review. In response to this, he promptly made a further 11 requests, which the Council deemed to be vexatious and again refused to answer. At this point, he seemingly saw reason and requested an internal review. In due course he was notified that the Council's original refusal had been upheld.

The Council's decision to refuse the requests was based principally on 'the number, nature and frequency of the requests', which were judged to be 'demonstrably obsessive and manifestly unreasonable'. The cumulative effect of all 87 requests, the fact that, after being informed that his requests would be refused, Q promptly submitted another batch and the fact that Q had been treated as vexatious in another context in 2004 were taken into account.

ICO assessment

The Decision Notice does not expressly refer to the s 16 FOIA duty to assist, but the subtext is clear. In concluding that the Council had satisfied its obligations to advise and assist, the Commissioner cited the Council's warning of its intention to apply s 14 of FOIA in order to refuse the requests, and Q's subsequent submission of more of the same. The implication seems to be (although it is not spelt out) that the Council gave him the chance to clarify what he wanted, and perhaps to narrow the scope of his questions, whereupon his actions simply confirmed the Council's suspicion that he was not acting in good faith.

In applying s 14 itself, the Commissioner assessed whether:

(a) the Council had clearly established that the requests imposed a significant burden;

(b) whether they had the effect of harassing it; and

(c) whether they could fairly be characterised as obsessive or manifestly unreasonable.

These three criteria are drawn directly from the Commissioner's Awareness Guidance No. 22.

The Commissioner agreed with the Council's decision not to aggregate the requests for the purposes of the Fees Regulations but, significantly, held that the aggregated effect of dealing with requests was nevertheless relevant to assessing whether the burden placed on a public authority was sufficient to engage s 14. On the basis of the Decision Notice, a public authority will not have to comply with a request if it can 'clearly demonstrate that dealing with the request(s) would divert a substantial amount of [its] resources'. By demonstrating a clear and systematic assessment of the total cost it would incur in responding to Q's requests (which it calculated would amount to over 140 hours of labour), the Council had satisfied the criteria for reliance s 14. The Commissioner agreed that the cumulative effect of the requests, both logged and unlogged, amounted to harassment. It was irrelevant that the requests were not strictly identical or even substantially similar.

The Commissioner made clear in his judgment that Q's motives or the 'value' of his requests should not be confused with the effect of the requests themselves, and the fact that an applicant has previously made vexatious requests for information does not of itself mean that subsequent requests will also be vexatious. Nevertheless, the Commissioner agreed that it was reasonable in this case for the Council to conclude that the requests were part of a larger pattern of behaviour and could therefore be deemed vexatious. So what guidance can public authorities take from both this decision and how other vexatious proceedings have been interpreted by the English courts?

Fair processing

If we apply the principles laid down by the courts (whose decisions, unlike those of the Information Commissioner, are legally binding), then the fundamental underlying principle is that anyone exercising their legal rights must receive a fair hearing. It follows that FOIA applications must be processed fairly, even where the applicant's motives appear dubious, or the request itself pointless. It is clear that a very high degree of nuisance is required before the courts will deem a claimant to be vexatious.

A recent example is the High Court judgment in the case of Bhamjee v Forsdick [2003] EWCA Civ 113 in which Mr Bhamjee was held to be vexatious only after he had made multiple applications involving various parties, had visited the Court of Appeal no less than six times, and then, in a final desperate attempt to resuscitate his grievance, issued proceedings against his opponents' barristers.

In the context of litigation, vexatious proceedings are those whose effect is an abuse of process. This usually requires an applicant to have brought repeated proceedings or appeals based on the same facts or against the same people, and moreover that the claim has no prospect of succeeding. In Attorney-General v Barker [2001] 1 FLR 759, Lord Bingham characterised vexatious claims in litigation as follows:

'The hallmark of a vexatious proceeding is'¦ that, whatever the intention'¦ its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant.'

Assessing the effect of FOIA requests

The emphasis on the effect of a claim rather than its form or motive is consistent with FOIA, which confers access to information as of right. This means that the merits of a request and the motives or grounds for making it are supposed to be irrelevant. FOIA is commonly described as 'purpose-blind' or 'applicant-blind', meaning that requesters do not have to demonstrate any interest or need-to-know before they become entitled to information. If this is right, then 'vexatious' in the context of freedom of information cannot apply to the motive or intent of the person making the request, but only to the effect of the request on the public authority fielding it. This seems logical. After all, it is reasonable to think that requests made simply to waste an authority's time, rather than because the applicant genuinely wants the information should fall within s 14. This is reflected in the guidance published by the Department for Constitutional Affairs, which states that 'vexatiousness needs to be assessed in all the circumstances of an individual case, but if a request is not a genuine endeavour to access information for its own sake, but is aimed at disrupting the work of an authority, or harassing individuals in it, then it may well be vexatious'.

If the effect of the request seems to engage s. 14, then this will normally be because it is diverting a lot of resource from the authority's core work providing public services. In the majority of such cases, one would expect this to trigger the cost ceiling imposed by the Fees Regulations (£600 for central government, £450 for everyone else).

One of the most interesting aspects of Birmingham City Council is that, in giving evidence about the cost of the requests made, the Council revealed that its policy was not to refuse requests on the basis of cost, unless the cost would undermine its ability to function. This seems to go considerably further than s 14, based on the published guidance which refers only to 'disproportionate inconvenience or expense'. The Council estimated that the 38 requests at issue would have cost between £100 and £400 to process individually, and in the region of £3,500 if aggregated (the disparity in the figures presumably representing economies of scale). The Commissioner's decision states that 'whilst'¦ [the Council] was correct not to exclude the request on the grounds of costs, he considers that it is appropriate for [the Council] to consider the aggregated effect of dealing with the requests'. This seems inconsistent. If an authority is entitled to consider aggregated effect, why should it then have to exclude from its assessment the aggregated cost?

If a request triggers the cost ceiling, this will permit the authority to refuse it under s 13. Remember also that s 5 of the Fees Regulations permits authorities to treat multiple requests from the same person as a single request provided they relate to the same or similar information and are received within any period of 60 consecutive days. This prevents applicants from dividing requests up in order to bring them below the cost limits. Another interesting aspect of the Birmingham case is that the Council's assessment of the requests led it to the view that although they dealt with similar 'themes', it could not aggregate them because of the wide range of specific 'topics'. The distinction between themes and topics is an interesting one. It is not a distinction that is readily be discernable within the legislation, and one might argue that in drawing such a line the Council went further than strictly required in order to comply with its legal duties.

In practice

This Birmingham City Council case is a useful source of guidance for practitioners everywhere, although it will surely not be the final word on the subject of vexatious requests. In practical terms the following key points are of particular interest to practitioners:

• The Council adopted a rigorous system of logging and processing requests, assessing costs and responding in line with the statutory requirements '“ this meant that its conduct during the period under consideration was largely beyond reproach, which meant that it came across during the appeal in a very good light.
• Its systematic and evidence based approach to assessing costs meant that it could justifiably claim that the cumulative effect of the requests was to place an excessive burden on its resources.
• Public authorities must be careful not to confuse vexatious requests with vexatious applicants.
• Any refusal to disclose information on the basis of s 14 must focus on the impact of the requests rather than the applicant's motives or the perceived 'value' of the requests themselves.
• The Commissioner examined decisions and guidance from other jurisdictions to support his interpretation and application of s 14.
• Public authorities can themselves benefit from reviewing foreign jurisprudence.

The full text of the Commissioner's Decision Notice is available from www.ico.gov.uk