In 2011 the Local Government Association (LGA) published a list of Freedom of Information (FOI) Requests which had been made to local authorities across the UK. Included in the list was a request to Cheltenham Borough Council to provide details of its contingency plans in the event that Santa should crash. The applicant called for details of who would rescue Santa, who would be responsible for rounding up the reindeer and which staff would get the job of clearing the crash site.
The LGA report did not disclose whether the authority had seen the funny side of the request, however, the time and effort required to deal with FOI requests is in some cases significant and it is useful to bear in mind that there are statutory limits which prescribe a councils efforts in this area.
Section 3(3) of the Freedom of Information and Data Protection (Appropriate Limits and Fees) Regulations 2004 (“the Regulations”) sets the upper limit of costs involved in dealing with a request beyond which authorities are not required to comply with an FOI request. This is currently set at £450.00.
Section 4(4) of the Regulations provides that the hourly rate to be applied for such work is a maximum of £25 per hour. If an authority adopted the maximum hourly rate the total time they would have for dealing with such a request is 18 hours.
Vexatious or Repeated Requests
Section 14 (1) of the Freedom of Information Act 2000 (“the FOIA”) provides that a public authority is not required to comply with an FOI request if it is vexatious and although the term vexatious is not defined, guidance published by the Information Commissioner suggests that the following are relevant criteria:
- Whether compliance would create a significant burden in terms of expense and distraction;
- Whether the request is designed to cause disruption or annoyance;
- Whether the request has the effect of harassing the local authority or its staff;
- Whether the request can otherwise fairly be characterised as obsessive or manifestly unreasonable; and/or
- Whether the request has any serious purpose or value.
The guidance states that is important to consider the context of the request and cites the following case:
Betts v Information Commissioner EA/2007/0109 (19 May 2008)
In this case,the request concerned health and safety policies and risk assessments. There was nothing vexatious in the content of the request itself. However, there had been a dispute between the council and the person making the request which had resulted in ongoing FOIA requests and persistent correspondence over a two year period. These requests continued despite the council’s disclosures and explanations. Although the latest request was not vexatious in isolation the Tribunal considered that it was vexatious when viewed in context. It was a continuation of a pattern of behaviour and part of an ongoing campaign to pressure the council. The request on its own may have been simple; however, experience showed it was very likely to lead to further correspondence, requests and complaints. Given the wider context and history, the request was harassing, likely to impose a significant burden, and obsessive.
A second commonly used tactic in FOI requests, whether for the purposes of creating a deliberate nuisance as a form of revenge against a local authority, or in order to attempt to obtain information a second or third time if unsuccessful initially, is to submit a slightly different request on the same subject matter.
This is dealt with in the second limb of section 14 of the FOIA; section 14(2) provides that where a local authority has previously complied with a request for information, it is not obliged to comply with a subsequent identical or substantially similar request unless a reasonable interval has elapsed between compliance with the previous request and the making of the current request. Again, there is no definition of ‘reasonable interval’ although in this instance it will be for the local authority to determine what constitutes reasonable.
Local authorities are therefore not entirely at the mercy of those seeking to abuse the process of obtaining information under the FOIA. Some will no doubt be subject to unusual requests of a seasonal nature; however in the absence of a Santa officer, it is clear that authorities do have other options available to them.