Taking requests in context

Section 14 of the Freedom of Information Act (FOI) provides that a public authority does not have to deal with a request it considers to be 'vexatious'. The term vexatious is not further defined in the statute, and practitioners have had to rely on Information Commissioner guidance and First Tier Tribunal decisions. At the end of January, the Upper Tribunal published decisions in relation to three separate appeals under both the Act and the Environmental Information Regulations (EIR), giving binding guidance on how to determine whether a request is vexatious under FOI, or manifestly unreasonable under EIR.

EIR and FOI both deal with public access to information, and in some ways are very similar in their operation. The wording in relation to requests that are considered 'disproportionate' is different '“ section 14(1) FOI refers to 'vexatious' and regulation 12(4)(b) refers to 'manifestly unreasonable' '“ but the underlying purpose is the same.

The three appeals dealt with requests under both regimes, and the Upper Tribunal found that the underlying meaning behind the two terms is the same, and so guidance on how to decide whether something is vexatious applies equally when looking at whether a request is manifestly unreasonable.

Five criteria

Practitioners who deal with FOI will be familiar with the five criteria set out in the Information Commissioner's guidance on vexatious requests. Although not legally binding those applying the vexatious (or manifestly unreasonable) test would be forgiven for simply applying these criteria, and deciding whether more than one of those criteria had been met.

Last year, the First Tier Tribunal gave further guidance in the IPCC case, but the more recent Upper Tribunal judgment in three linked appeals (IC v Dransfield [2012] UKUT 440 (AAC), Craven v IC [2012] UKUT 442 (AAC) and Ainslie v IC [2012] UKUT 441 (AAC)) finally gives us some binding guidance on when a request might be vexatious or manifestly unreasonable.

Whole picture

The Upper Tribunal was careful to point out that when looking at a request that may be vexatious or manifestly unreasonable, it is the whole context of the request that must be taken into account. It is the request that is vexatious, rather than the requestor, but the history relating to a particular request can ?be relevant.

As a starting point, a public authority should consider whether the request is likely to cause distress, disruption or irritation without any proper or justified cause. The latter part of this definition is important, as the purpose of the two information regimes is to give the public access to information, and increase transparency.
The journalist investigating the MP expenses scandal could have been branded vexatious in terms of the number of requests, but the clear public interest in the subject matter and the exposing of wrong doing would outweigh that.

So, taking the above as a starting point, the Upper Tribunal then identified four further areas to consider:

Burden '“ this is about previous dealings with the person making the request, and public authorities should be looking at the number, breadth, pattern and duration of previous requests. The burden being placed on the public authority in dealing with the requests should be excessive when taken together, and having considered the other elements below.

Motive '“ it may not be possible to discern the motive of a requestor from the information that they provide, but the previous dealings will again be relevant.

Value/serious purpose '“ a request that has no objective value or serious purpose is not in itself vexatious, but the value can be relevant when assessing whether a request in a series of requests is vexatious. The Upper Tribunal talked about 'drift', and the way in which requests can move from being about one issue, to another, unrelated matter.

Harassment/distress '“ The final element concerns treatment of staff dealing with the requests and the actions of the person making the request. Expressing frustration when information is not forthcoming is natural, and does not make a further request vexatious, but going beyond merely expressing frustration could indicate that a request is becoming vexatious or manifestly unreasonable.

Guidelines, not tramlines

The Upper Tribunal did not (and probably should not) amend the ICO guidance, but made the point that the five criteria were guidelines not tramlines, and that other considerations could be equally valid. While the guidance suggests that to be vexatious, more than one of the criteria should be present, the Upper Tribunal clearly stated that this was not correct '“ a request may only meet one of the criteria, but still be vexatious when the whole picture is considered.

The ICO guidance is still valid as a guide to what might be considered vexatious, but should not be considered as definitive. If, when looking at the whole pattern and context of requests received by an authority, it appears to be vexatious, the authority can use the four points made by the Upper Tribunal, as well as the ICO guidance to assist their decision making.
However, it is the overall context of the request that is important, and public authorities should take care not to apply the guidance too strictly.

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