Do vexatious requests for disclosure of information trump the public interest test?

The decision in Parker v Information Commissioner should be welcome news for public bodies. This latest case sheds some useful light on when a public authority can treat a request under FOIA as vexatious (or not, as the case may be). The case also provides some practical guidance on how to approach the preparation of the documentation to support the declaration that a requestor is vexatious.

Summary

There is a general right of access to information held by a public body pursuant to the Freedom of Information Act 2000 (FOIA). That right “does not oblige a public authority to comply with a request for information if the request is vexatious" (section 14 FOIA). The purpose of section 14 is to protect the resources of the public authority from being squandered on unjustified, inappropriate or improper use of FOIA. The meaning of vexatious, however, has been purposefully left undefined - except in that there is agreement the burden should be very high to show a request is vexatious.

How to approach vexatious requests for information - Dransfield revisited

In Information Commissioner v Devon CC and Dransfield the Upper Tribunal Judge Wikeley recommended four broad issues that are useful in applying when deciding whether a request is vexatious. These are:

1. The burden of providing the information requested on the public authority and its staff
2. The motive of the requester
3. The value or serious purpose of the request
4. Any harassment or distress of and to staff

Such considerations are a useful guideline, but neither exhaustive nor intended to create a check-list. Instead it comes down to whether any public interest in the request is outweighed in all the circumstances of the case. In Dransfield, the persistent and repetitive nature of the requests outweighed the legitimacy of the initial request.

Ultimately for application of section 14 a holistic approach, on a case-by-case basis, is required.

Parker decision

The judgment in Parker follows Dransfield. It also provides practical guidance in respect of evidence required to prove a request satisfies section 14, based on a previous course of dealing. Similarly to Dransfield, Parker involved persistent and repetitive requests from an aggrieved party.

Background

The request that was the subject of the appeal was made by Colin Parker on 27 September 2013 to the Health Research Authority.

Colin Parker had been a volunteer on one of the Research Ethic Committees operated by the HRA. In December 2009 his appointment came to an end and Mr Parker was not reappointed. He felt aggrieved and pursued, unsuccessfully, a number of avenues for redress including the Employment Tribunal and various complaints to the HRA; Health Service Ombudsman; relevant Government Minister; and the National Research Ethics Advisors’ Panel.

Between 2008 and 2013 Mr Parker also lodged a number of FOIA requests with the HRA which all touched on the broad issue of processes of committee appointments and any complaints in respect of these. He also made several subject access requests under the Data Protection Act 1998.

On 23 August 2013 Mr Parker made another FOIA request, seeking the "determinations" of the HRA Board on matters relating to complaints. The response to this FOIA request prompted the Request which was materially in the same form as the request made on 23 August 2013.
The HRA applied section 14 to the Request. Mr Parker complained to the lC who investigated and concluded for the HRA. Mr Parker then appealed to the First Tier Tribunal (FTT).

The FTT held that the request was "disproportionate and manifestly unjustified" and Mr Parker was "clearly engaged in a campaign of extracting at least something from every piece of information provided to him and using it as the basis of a further request".

An appeal to the Upper Tribunal (UT) was later allowed as it was deemed arguable the FTT should have adjourned to obtain further detail and/or considered whether to hold an oral hearing of the appeal due to the lack of evidence presented by the IC. Further, the FTT should have more explicitly referred to the consideration of the underlying public interest to access the information requested.

The UT found despite the above noted criticisms, that there had been no material error in law and dismissed the appeal.

Comment

In Parker, had the applicant not provided the details about his dealings with the HRA, the material provided by the IC would not have been sufficient to have formed any accurate conclusions about the course of dealings.

It is therefore important to keep a clear record of any FOIA requests made including the content and context of such a request, as well as the adequacy of responses to the same.

In relation to evidence on course of dealing, Judge Knowles QC at paragraph 34 guides us that “….a compendious and exhaustive chronology exhibiting numerous correspondence is not required but there must be some evidence, particularly from the lC, about the past course of dealings between the requester and the public authority which also explains and contextualises them.” The context is important to show that the requests are repetitive and/or broadly the same in nature.

Seven rules for FOIA practitioners

1. Overall, the greater the number of previous FOIA requests, of the same nature, that the individual has made to the public authority concerned, the more likely the request is to be vexatious.
2. If the public authority has failed to deal with those earlier requests appropriately, that may go against the most recent request being vexatious. So, always deal with a request the first time it is made, otherwise, you can’t claim the request (or requestor) is vexatious.
3. Sometimes requests can be so wide ranging that they can be difficult to deal with. In this scenario, the requests may be better dealt with by providing guidance and advice on how to narrow the request to a more manageable scope before responding substantively.
4. Don’t forget the exemption at section 12: where cost of compliance with the request exceeds the appropriate limit, the request does not have to be complied with.
5. In situations where the purpose of a requester is clearly rooted in vengeance, and the course of dealing is distressing and persistent, section 14 will not automatically apply.
6. If the request itself is aimed at the disclosure of objectively important information which ought to be made publicly available, there may not be a section 14 exemption. The underlying public interest must always be considered and applied.
7. Make sure your evidence clearly shows, in the form of a chronology, why this is a vexatious request.