Sorely vexed: Support for applying s.14 FOIA

A new Freedom of Information Code of Practice, published by the Cabinet office in July, provides new guidance to public authorities on the discharge of their functions and responsibilities under the Freedom of Information Act 2000 (the Act).  The Code, which is published under s.45 of the Act, and takes into account feedback received from multiple parties including the Information Commissioner’s Office during a 2017 consultation.

While Freedom of Information is one of the pillars upon which open government operates, most public authorities are well aware that responding to requests (and subsequent disputes regarding those requests) can be extremely resource intensive. While many requests are for legitimate purposes, the Act can be (and is) also used as a weapon by the disgruntled. Public authorities have historically been slow to declare requests vexatious in accordance with s.14 of the Act, in part because of a prevailing understanding that the requirement to look at the request, rather than the requestor, meant that s.14 would only apply in the most extreme cases.

The tide is shifting.  Building on previous case law, the court in Oxford Phoenix Innovation Ltd v Information Commissioner & Medicines and Healthcare Products Regulatory Agency recognised that, although a public authority must focus on each request as it comes, it is impractical to ignore the context of the request, particularly where the requestor’s course of conduct is at issue.  In that case, while there had probably once been a genuine dispute at one point, any proper purpose to the request made under the Act “had been overshadowed and extinguished” by the requestor’s “improper pursuit” of his “war” with the MHRA.

Additionally, the new Code of Practice encourages public authorities to use s.14 more, rather than treat it as exceptional or a last resort.  As well as considering the burden imposed on the public authority by any given request, authorities should take into account the wider context of a request:

• What other requests have been made by the same requester to the public authority?
• If there are multiple requests – how many and about what?
• Is there a personal grudge behind the request?
• Is the requester unreasonably persisting in seeking information in relation to issues already addressed by the public authority?
• Does the request have any serious purpose or value?

Public authorities should also look at the requestor’s known behaviour.  Requests are more likely to be vexatious if the requestor is known to engage in a large volume of sustained, abusive or confrontational correspondence, over long periods.  Evidence of deliberate ‘campaigns’ by multiple requestors to purposefully disrupt a public authority’s activities, or where requests are issued under false names to obscure the identity of the requestor, will also support a rejection of the request under s.14.