Under section 14 of the Freedom of Information Act 2000 (FOIA 2000), public authorities are not required to respond to freedom of information requests which are vexatious or repeat requests. The Information Commissioner’s Office (ICO) has encouraged public authorities to make use of this section, wherever there are genuine grounds to do so. Although it is potential a useful exemption, there remain concerns over when it is available, since FOIA 2000 does not provide any real detail on what is a vexatious request.

In early December 2008 the ICO produced revised guidance on vexatious and repeated requests. This new Guidance replaces the earlier Awareness Guidance 22. The ICO has taken the opportunity to produce two guidance notes: a short guide, which acts as an executive summary on vexatious requests only, together with full guidance on vexatious and repeated requests. The full guidance on vexatious and repeated requests is particularly valuable, as it simplifies this area and provides useful examples from recent decisions.

The crucial questions

Section 14 (1) of FOIA 2000 simply states that the right to know under FOIA: “ does not oblige a public authority to comply with a request for information if the request is vexatious.”

The first issue to be tackled is therefore: what is a vexatious request? The Guidance lists five crucial questions and states that, in order to judge a request as vexatious, an organisation must be able to make relatively strong arguments under one or more of these questions:

Can 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 in terms of expense and distraction?

Is the request designed to cause disruption or annoyance?

Does the request lack any serious purpose or value?

It is not necessary to answer yes to every question, however a public authority must be able to answer yes to more than one of them.

Context and history

Before looking at the crucial questions in detail, the Guidance considers the context and history of requests and requesters and their relevance to the question of whether the exemption in section 14 is available to a public authority.

The exemption applies to vexatious requests not vexatious requesters. Therefore, the ICO makes the point that simply because an individual has caused problems in the past does not mean that the request that he or she makes will be vexatious. However, the ICO states that the past behaviour of the requester will be relevant if the request appears to continue that behaviour. A request may not be vexatious in isolation, but when considered in context (for example if it is the latest in long series of overlapping requests or other correspondence) it may form part of a “wider pattern of behaviour that makes it vexatious”.

Can the request fairly be seen as obsessive?

This is the first of the crucial questions. Context and history is particularly important since it is unlikely that a one-off request could ever be obsessive. The ICO states that relevant factors include: volume and frequency of correspondence; requests for information which has already been provided or seen; or a clear intention to use the request to re-open issues that have already been debated and considered. For example, if a requester makes a lengthy series of linked requests, despite the fact that the requester already had independent evidence from independent investigations, this makes it likely that it is an obsessive request. The ICO quotes Welsh v Information Commissioner EA 2007/0088 (16 April 2008) as an example here. In this case the requester made a complaint against his GP. However the GP’s practice, the GMC and Primary Care Trust and the Healthcare Commission all investigated the complaint and rejected it. The individual continued to write to the GP’s practice reiterating the complaint. The Tribunal found the requests to be vexatious.

Is the request harassing the authority or causing distress to staff?

Here the focus should be on the likely effect of the request on the requester’s intention. This is to be considered by the public authority objectively, i.e. it must put itself in the position of a reasonable person and consider whether he or she would be likely to regard the request as harassing or distressing. Language used in the request may be relevant together with unreasonable fixation on individual members of staff. This was an issue in Gowers v The Information Commissioner and LB Camden EA 2007/0114 (13 May 2008). In this case the requester made various requests and complaints against alleged incompetence at a council. He also made personal accusations against a particular member of staff and attempted to identify their spouse through FOI requests. The Tribunal considered that the correspondence would likely to have been seen by any reasonable recipient as hostile, provocative and personal. Individual members of staff were likely to have felt deliberately targeted and victimised.

Would complying with the request impose a significant burden in terms of expense and distraction?

Unfortunately, this factor is not enough on its own to show vexatiousness. If the concern is primarily the cost of compliance then an authority should consider section 12 FOIA 2000 (which provides an exemption for responses which would exceed the relevant cost threshold).

Helpfully though the Guidance states that the wider context of the request may be relevant, since an authority may be able to decide that responding to a simple request would still impose a significant burden because any response would be likely to lead to a significant number of further requests and complaints.

Is the request designed to cause disruption or annoyance?

This can be difficult to prove since it relates to the requester’s intention and FOIA 2000 is intended to be applicant and purpose-blind. In some cases requesters helpfully and explicitly state that they want to cause the maximum inconvenience. For example, in ICO decision FS50151851 the request included the statement “I am insincere and my purpose is mischievous subversion”.

There may be other evidence that a requester wants to disrupt or deliberately annoy the authority by making requests, if, for example, the requester is involved in a campaign group that has publicly stated its intent to disrupt an authority as part of its campaign.

Does the request lack any serious purpose or value?

This final, crucial question is a difficult point for the ICO for several reasons. First, in the Guidance it is made clear that an apparent lack of serious purpose or value is not enough on its own to make a request vexatious. An authority must demonstrate that the request has no purpose or value, rather than simply suggest that because the requester did not provide a reason there cannot be one. In addition, there is an issue as FOIA 2000 is intended to be purpose-blind, so how is an authority to discover if there is a purpose at all, let alone whether it is serious?

In the case of Coggins v The Information Commissioner EA/2007/0130 (13 May 2008) the requester suspected that a council had fraudulently charged an elderly lady for care services not provided. Investigations by the council, the Committee for Social Care investigation and the police all found no evidence of dishonesty. Nevertheless, the requester persisted with the allegations and submitted 20 requests in 73 letters and 17 postcards over a two year period. Although the requester had a reasonable and genuine desire to uncover fraud, the requests had become obsessive and after three independent enquiries the requester should have simply let the matter drop. Therefore the requester’s further request was found to be vexatious.

Is the request repeated?

The Guidance then turns to the issue of repeat requests. Under section 14(2) “Where a public authority has previously complied with a request for information which was made by any person, it is not obliged to comply with a subsequent identical or substantially similar request from that person unless a reasonable interval has elapsed between compliance with the previous request and the making of the current request”.

The ICO emphasises that to be repeated, requests must have been submitted by the same person. If requests are submitted by different requesters, eg as part of a campaign, then they may still be vexatious or exempted under the cost threshold in section 12 FOIA 2000.

The Guidance explains that repeated requests may be genuine where there are new and updated figures (as opposed to requests for the same, historical figures).

Where a request for information has been recently refused a repeated request should be treated as a request for an internal review of the original decision.

The exemption in section 14(2) refers to a reasonable interval. The ICO states that a reasonable interval depends on the circumstances, including when and how often the information is likely to change and any advice given to the requester on when new information might be available.

Refusal notices

One of the difficulties when dealing with vexatious requests is issuing a refusal notice, which in itself can be inflammatory and lead to further correspondence and complaints. A refusal notice is required to be issued under section 17 FOIA 2000. However, the Guidance helpfully states that a refusal notice is not required if an authority has already given the same person a refusal notice for a previous vexatious or repeat request and it would be unreasonable to issue another one.

Case note

Although predating the new Guidance, the ICO has recently issued a decision notice (reference FS50157445) upholding a refusal notice, based on section 14 (1), and issued by the Chief Constable of Cheshire Constabulary. The case note picks up on the crucial questions discussed in the new Guidance and is a useful example of how the ICO will consider these questions and the evidence which will be required.

In this case a loss adjustor made a number of requests for information regarding use and ownership of the Cheshire Constabulary’s logo together with information on web suppliers and telephone recording systems used by the Constabulary. This was the last in a series of complaints and requests made by the complainant and the Constabulary issued a refusal notice based on section 14. The complainant had made ten requests for information between July 2005 and April 2007. Each request consisted of between one to 14 separate requests for information. The Constabulary estimated that 463 hours of police time had been spent on activities relating to the complainant.

In correspondence the complainant had admitted that his original complaint was “a relatively minor issue”. The Constabulary had picked up on this phrase and had referred to it in its refusal notice as one of the reasons for applying section 14. The ICO agreed that the Constabulary was correct to do so. However, the ICO felt that there were other, more compelling reasons for the application of section 14. These were the significant burden imposed by the request (having shown that 463 hours had already been spent on this applicant) and the obsessive nature of the request.

There had been internal reviews and an investigation by the Independent Police Complaints Commission. In this case the complainant was trying to air his concerns on his website. The ICO considered that this case was analogous to the Coggins case referred to above, in that the complainant’s actions had reached the point where the latest request was both obsessive and manifestly unreasonable.

Therefore, applying the new Guidance to this case, the Constabulary was able to show that the request was both obsessive and a significant burden. It was also able to rely on the “relatively minor” statement to show the request did not have a serious purpose or value. It was not, however, able to show that the request had the effect of harassing the police (despite a statement by one member of staff that she felt she was the victim of harassment). There was similarly no clear evidence that the request was designed to cause disruption and annoyance (despite the Constabulary’s view that certain correspondence showed this point).

Summary

The ICO has long been convinced that public authorities should use section 14 more. The full Guidance note is helpful and clear. Although there will still be difficulties (how do you prove a request has no serious purpose or value, except in unusual cases where an applicant admits it?) overall the note will assist authorities and is well worth reviewing. The Cheshire Constabulary decision notice referred to above also shows the evidence required to sustain the use of this exemption and indicates that close review of correspondence from complainants can reveal the evidence necessary to rely on the exemption for vexatious requests.

First published in Freedom of Information Journal, December 2008