Out-Law News 4 min. read

Tribunal sets out new guidance on determining whether FOI requests are 'vexatious'

Whether a freedom of information (FOI) request is 'vexatious' or not will depend on the burden of meeting the request; the motive of requesters; the value or serious purpose of requests, and any harassment or distress caused, an Information Rights Tribunal has said.

In the first case of its kind (21-page Word doc) in which an appeal court or tribunal has been asked to determine what is meant by a 'vexatious' FOI request, an Upper Tribunal judge said that guidance provided by the Information Commissioner's Office (ICO) on the issue was only of limited assistance to public bodies.

The judge, Nicholas Wikeley, therefore proposed "four broad issues or themes" that public bodies should keep in mind when considering whether FOI requests are vexatious or not.

"It may be helpful to consider the question of whether a request is truly vexatious by considering four broad issues or themes – the burden (on the public authority and its staff); the motive (of the requester); the value or serious purpose (of the request) and any harassment or distress (of and to staff)," the judge said in a ruling earlier this month.

Under UK FOI laws anyone of any nationality living anywhere in the world can make a written request for information and expect a response within 20 working days. The public authority is obliged to meet that request unless exemptions apply or unless meeting it will be too costly or difficult. Public bodies can decide not to provide information requested if they deem the request to be vexatious.

A similar right to strike out requests for disclosure of 'environmental information' exists for public bodies under the Environmental Information Regulations (EIR) if they feel requests for that information are "manifestly unreasonable". Wikeley said that he could "see no material difference" between what is meant by 'vexatious' and 'manifestly unreasonable' in the context of the FOI and EIR regimes.

The judge said that public bodies should consider the "number, breadth, pattern and duration of previous requests" made by individuals under the FOI framework when considering whether those requests are burdensome.

He said that public bodies must also consider the "underlying rationale or justification" for individuals' requests when considering the motive behind those requests. This is despite the "mantra" of the FOI regime being that requests are to be treated as "both 'motive blind' and 'applicant blind'", he added.

"What may seem an entirely reasonable and benign request may be found to be vexatious in the wider context of the course of dealings between the individual and the relevant public authority," Wikeley said. "Thus vexatiousness may be found where an original and entirely reasonable request leads on to a series of further requests on allied topics, where such subsequent requests become increasingly distant from the requester’s starting point."

The judge said that there is "legitimate public interest" in enabling public bodies to refuse to adhere to FOI requests where the requests are vexatious on the grounds that it prevents "undue and disproportionate burden" being placed "on scare public resources". However, he said that public bodies cannot claim requests are vexatious in order to prevent "genuine attempts to hold them to account", such as where investigative journalists make a "series" of FOI requests because the findings from disclosed information "prompts" them to do so.

Wikeley said that public bodies should consider the "inherent value" of requests and whether there is "objective public interest in the information sought". He said the value in requests "may diminish over time" and that there may not be a "continuing justification" for dealing with repeated requests for information on the same issue. However, it said public bodies should be "wary of jumping to conclusions about there being a lack of any value or serious purpose behind a request simply because it is not immediately self-evident".

If requests cause harm or distress to public bodies or their staff those requests cannot automatically be deemed to be vexatious, Wikeley also said. He said, though, that "vexatiousness may be evidenced by obsessive conduct that harasses or distresses staff, uses intemperate language, makes wide-ranging and unsubstantiated allegations of criminal behaviour or is in any other respects extremely offensive".

Wikeley said that his guidance was "not intended to be exhaustive" or "meant to create an alternative formulaic check-list". He said that the term 'vexatious' was an "inherently flexible concept which can take many different forms" and that his views "should not be taken as imposing any prescriptive and all encompassing definition" upon it. He said, though, that there were limitations to the guidance the ICO has issued to help public bodies determine whether FOI requests are vexatious.(14-page / 257KB PDF)

Under the ICO's guidance organisations are urged, on a case-by-case basis, to fundamentally decide whether requests are "likely to cause distress, disruption or irritation, without any proper or justified cause". The watchdog said that the bodies need to give consideration to both the "context and history" of requests and recommends that they ask themselves five questions to help them gauge whether requests are vexatious or not.

However, Wikeley said that the ICO's five questions "are at best pointers to potentially relevant considerations ... at most a tool for assisting with structured decision-making [and] ... must be viewed as a means to an end, and not as an end in themselves".

"It may be that the [ICO's] guidance needs to place greater weight on the importance of adopting a holistic and broad approach to the determination of whether a request is vexatious or not, emphasising the attributes of manifest unreasonableness, irresponsibility and, especially where there is a previous course of dealings, the lack of proportionality that typically characterise vexatious requests," Wikeley said.

Wikeley used the "four broad issues or themes" he formed to overturn a decision by a First-tier Tribunal in a case involving Devon County Council. The judge said that a request for information relating to a pedestrian bridge at a rugby ground in Exeter should be considered to be vexatious. The First-tier Tribunal had "misapplied the proper legal text for establishing whether a request for information under FOIA is 'vexatious'" in the context of the FOI regime, he ruled.

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