Practical Law

PLC Public Sector reports:

Under section 14(1) of the Freedom of Information Act 2000 (FOIA), a public authority does not have to provide information that has been requested if the request is vexatious.  Although FOIA does not define “vexatious”, its meaning has been considered in a number of cases, including the recent decision of the First-tier tribunal (Information Rights) (Tribunal) in Dransfield v Information Commissioner which is a useful reminder of the following key principles.

• Section 14(1) is concerned with whether the request is vexatious and not whether the applicant is vexatious.
• A public authority must not only examine the request but also the context and history as a request may only show its vexatious quality when viewed in context.
• The standard for establishing whether a request is vexatious should not be too high nor too low.  What is required by section 14(1) is a balancing of the need to protect public authorities from genuinely vexatious requests on the one hand, without completely constraining the legitimate rights of individuals to access information on the other.

When determining whether a request is vexatious, and of course each case will need to be viewed on its own facts, a public authority should have in mind the following questions that the Commissioner’s Awareness Guidance 22 focuses on:

• Could 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?

The applicant in Dransfield made what appeared to be a straightforward request on 29 May 2010 for approved design drawings of the pedestrian bridge at Exeter Chiefs’ Rugby Grounds and the lightening protection system (LPS) test results in relation to that bridge.  However, there was a history of previous FOIA requests relating to health and safety and LPS of other projects and buildings that Devon County Council (Council) relied on when characterising the applicant’s request as vexatious, and which the Commissioner agreed, was a continuation of the applicant’s May 2010 request. As evidence of the applicant’s obsessiveness, the council relied on:

• His repeated entry of school premises to assert their lack of safety, from which premises he was subsequently banned.
• His aggressive and harassing tone in correspondence.
• The fact there was no significant public interest in disclosure of the requested information.

However, having carefully considered the history of prior dealings between the applicant and the Council, the Tribunal decided that the request was not vexatious.  Its reasons for doing so were that the request, on its face, was simple and “entirely benign”.  If it had been the only request the applicant had made, it was likely the Council would have provided the information.  The reason the request for information was refused had everything to do with the previous history of dealings and nothing to do with the request itself. 

The Tribunal has recognised in several cases that the history and context of the applicant’s dealings with the public authority are important considerations when determining whether a request is obsessive.  In cases such as Gowers EA/2007/0014, Rigby EA/2009/0103 and Coggins (EA/2007/0130), there was an underlying grievance at the heart of the request in issue and at the heart of a series of previous requests and correspondence, given that:

• The applicant held the public authority responsible for his mother’s death and made repeated requests for information to justify his grievance (Rigby).
• The requests for information arose from the applicant’s view that the public authority had failed in its services in connection with his daughter’s education (Gowers).
• The underlying complaint that linked all the requests for information was about perceived fraud in charging for an individual’s domiciliary care (Coggins).

When assessing whether the particular request was vexatious, it was important and relevant to consider the history of the applicant’s dealings with the public authority.  However, as these cases demonstrate, there is  an important distinction to be drawn between taking into account the history and context of:

• A request for information, which is a proper and valid consideration.
• Other requests for information made by an applicant or other dealings between the requester and the public authority, that risks crossing the line from treating the request as vexatious to treating the requester as vexatious.

In Dransfield, the Tribunal was satisfied that the line had been crossed.  Of the 11 requests made by the applicant in a five-year period, there was no single underlying complaint linking the various requests, which concerned four different subjects.  Although three of the four requests related to safety and LPS issues of built structures, only one previous subject concerned a pedestrian bridge and that was at a school.  Therefore, the Tribunal decided that the May 2010 request was not a continuation of the previous requests and the Council was not entitled, under section 14(1) of FOIA, to refuse the request on the basis of past history.  Although there was a link between the subject matter of the applicant’s May 2010 request and previous requests, since they all concerned safety issues and most were about LPS, the similarity of the subject matter was not enough for the request to be seen as a continuation of previous requests.  Therefore, the Tribunal found that the request was not vexatious.

The lesson for a public authority from this decision and the others is that it should:

• Not refuse all requests from an applicant as vexatious just because other requests may have been.
• Not draw the line too soon. 
• Assess whether, and to what extent, any previous course of dealings relate to the particular request.  The test is to consider how closely it is related to the previous history of dealings with the applicant.  A public authority will have a greater prospect of defending its reliance on section 14(1) if the two are closely related.

For information on:

• The legal regime covering FOIA, see our quick guide.
• The latest FOIA case law, see our case tracker.