As a Solicitor who advises public authorities on FOI requests, it would be easy to forget that the contentious requests I often see are unrepresentative of the majority fulfilled by public authorities on a daily basis. Indeed, a study conducted by the Scottish Information Commissioner last year found that public authorities have become more open during the first five years of FOI, disclosing more information in response to requests as well as making large amounts of information freely available under their publication schemes. This trend seems likely to continue, not only because of increased familiarity with FOI but also in recognition of the potential cost savings in getting requests right first time.
Although contentious FOI requests may be relatively infrequent, they can have a large impact on a public authority, both in terms of the resources and management time which can be sucked into dealing with them and in the stress that a dispute can cause individual members of staff. In some circumstances, these factors entitle a public authority to refuse to comply with a request on the basis that it is “vexatious”.
The concept of vexatiousness in FOI
In a non-legal sense (not that the phrase is exactly in common use outside legal circles) vexatious is a subjective term broadly synonymous with something irritating or inconvenient. But in the FOI context, it is important to remember that more is required to constitute vexatiousness than simply finding a FOI request inconvenient or the person making it irritating!
The Scottish Information Commissioner considers that in order for a request to be vexatious under the Freedom of Information (Scotland) Act 2002, it must impose a significant burden on a public authority; and meet one of the following criteria, that:-
- it does not have a serious purpose or value; and/or
- it is designed to cause disruption or annoyance to the public authority; and/or
- it has the effect of harassing the public authority; and/or
- it would otherwise, in the opinion of a reasonable person, be considered to be manifestly unreasonable or disproportionate.
The Scottish Information Commissioner’s approach is yet to be tested in the Scottish courts as none of its decision under this section have been appealed.
FOI Requests South of the Border
For organisations operating south of the border the approach taken by the Information Commissioners Office (the “ICO”, the body responsible for administering the Freedom of Information Act 2000) and the Information Tribunal (the body which hears appeals from the ICO) is broadly similar to that of the Scottish Information Commissioner. However, one material difference is that the ICO does not require a “significant burden” as an essential criterion of vexatiousness, instead treating it as one of the range of factors to be assessed.
In my personal view, the greater flexibility in the ICO’s approach is to be preferred. Should a public authority in Scotland, for example, be obliged to respond to a request such as the one previously considered by ICO in which it was actually stated in the request that “I am insincere and my purpose is mischievous subversion” and “my own motivation is no more than to be disruptive and annoying” if they cannot demonstrate that responding would impose a significant burden?
In a time when use of public resources is under greater scrutiny than ever, an obligation to apply even limited public resources to meeting such a request which so obviously lacks serious purpose or value seems of debatable merit. On the other hand there is an obvious risk that genuine information requests could be unjustly denied if the bar of vexatiousness is set too low. This is why the concept of vexatiousness is such an important “high water mark” in FOI.
Practical tips on identifying vexatious requests
As the Scottish Information Commissioner notes in their guidance, a decision to deem a request vexatious will often be contentious and may well be challenged. It is therefore important for public authorities to make such decisions in a reasoned fashion that takes into consideration all relevant factors. We have outlined below further points to consider when deciding if a FOI request is vexatious:
The Information Tribunal gives the following useful summary of indicators of vexatiousness (under the Freedom of Information Act 2000) in Ward v Information Commissioner:
- Requests forming part of an extended campaign to expose alleged improper or illegal behaviour where the evidence does not support the campaign.
- Requests involving information already provided to the applicant.
- Where the nature and extent of the applicant’s correspondence suggests an obsessive approach to disclosure.
- A tendentious/haranguing tone which demonstrates an intention to argue and not really to obtain information the requester does not already have.
- Where the correspondence could reasonably be expected to have a negative effect on the health and well-being of the employees of the public authority.
- Where the request seeks to reopen a debate or complaint by alternative means.
- Where responding to the request would likely entail substantial and disproportionate financial and administrative burdens for the public authority.
Remember that is the request and not the person making it that you are deeming vexatious. It is, however, appropriate to consider the context and history of previous dealings between the authority and the person making the request. A request which may be valid when made by one person could be vexatious when made by another.
A large volume of requests made at the same time or in close succession may be vexatious (e.g. Macroberts and Caledonian MacBrayne Limited/Scottish Executive – 720 requests made on the same day to two public authorities).
Vexatious FOI Requests - Conclusion
If you have received a FOI Request which you think may be vexatious, consider the guidance issued by the Scottish Information Commissioner and also the practical pointers outlined above.