REUTERS | Ali Hashisho

Public authorities cannot “cherry pick” which parts of a FOIA request they respond to

A recent First-tier Tribunal (Information Rights) (FTT(IR)) case, McLellan v Information Commissioner,  provides a useful reminder that public authorities are not permitted to pick and choose which parts of a Freedom of Information Act 2000 (FOIA) request they respond to, even where someone has made persistent requests.

The case is an interesting example of FOIA itself being used to address concerns that a public authority was not properly fulfilling its FOI obligations.

The information request in question appeared within correspondence between an individual and his local London borough council about the council’s enforcement of penalty charge notices. The requester had made a series of complaints (including to the Information Commissioner, who had already issued a decision notice) about the way that the PCNs had been pursued and his case handled.

The council’s director of marketing and communications had replied to one of the requester’s previous complaints by stating:

“When the Act [FOIA] is not cited, it is up to the officer who received the request to either respond to it or refer it to the FOI team who can process it and ensure the appropriate information is collated and supplied. In this instance, the receiving officers felt it was an appeal/complaint and processed it as such.”

The requester then asked the council whether this director should have referred the complaint to the FOI team instead of to the complaints team. It was this last request that was the subject of the FTT(IR)’s decision in question.

The council responded to this request by reiterating the director’s previous response, and then by relying on section 14 of FOIA to state that it was not under a duty to respond as the request was vexatious and had already been answered by the director’s previous response.

The requester again complained to the Commissioner, who said that his previous decision notice stood and that the requester appeared to be attempting to reopen issues that had already been resolved. He held that the parties’ previous course of dealings meant that the overall burden on the council of continuing to respond would be substantial and the requester had been unreasonably persistent. In addition, the requester appeared to be requesting an opinion, which was not covered by FOIA, rather than information actually held.

The FTT(IR) applied the tests for vexatiousness set out in Dransfield v Information Commissioner and another (see Legal update, FOI: Court of Appeal guidance on “vexatious” and “manifestly unreasonable”). It held that at least some of the chain of correspondence arose from the council’s failure to process information requests appropriately, which necessitated the requester having to repeat some of his requests. Other duplication in requests was partly due to the fact that the requester was a litigant in person. It stated that it was “wary of concluding that an Appellant has generated ‘burdensome’ correspondence because he has had to go to appeal having been unable to resolve the matter using the Council’s own internal processes (especially in a case where the appeal was successful).” The FTT(IR) therefore held that the requests were not persistent and could not be classed as vexatious.

The FTT(IR) also pointed out that the particular question asked by the requester about whether his previous query should have been passed to the council’s FOI team was not properly addressed in the council’s response. They only addressed it (by categorising the request as vexatious) when challenged for their failure to respond and their internal review did not resolve the matter. The FTT(IR) pointed out that although it is true that public authorities have the option to deal with an information request either “locally” or through their FOIA team, FOIA does not give them the option to refuse to respond at all.

The FTT(IR) therefore allowed the appeal. It held that what the requester was asking for was confirmation that the council’s policy for responding to FOIA requests was not properly followed in his case. This was conclusion or opinion, rather than information held. No steps were therefore required to be taken. The FTT(IR) said that the appropriate action would have been for the council to explain that it was refusing the request  on the ground that it was an opinion, pursuant to the requirement under section 16 of FOIA to provide advice and assistance.

The FTT(IR)’s refusal to classify as vexatious the requester’s concerns that the correct procedures were not being followed shows that tribunals can be willing to allow FOIA to be used to highlight potential shortcomings. It serves as a reminder that public authorities should seek to address each separate part of an information request, rather than simply ignoring those parts that they consider not to be covered by FOIA.

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