There have been two Tribunal decisions this week on s. 14 FOIA – vexatious requests. In both cases, the public authority and the Commissioner had found that s. 14 applied because of the context of the particular request. In one case, the Tribunal agreed: the context involved the requester acting in concert with others in pursuing a targeted campaign of requests. In the other, the Tribunal found that the Commissioner and the public authority had placed too much weight on the context, and had given insufficient consideration to the particular request.
The Appellant in Duke v IC and University of Salford (EA/2011/0060) had been dismissed by Salford University. He contended that his requests for information had a serious purpose connected to a forthcoming Employment Tribunal. Between the end of October 2009 and early February 2010, the University received over 100 requests for information – submitted by 13 individuals – all but three of which were submitted via the WhatDoTheyKnow.com website. To put this pattern in context: during the whole of 2008, the University had received 117 requests submitted by 78 different requestors. The Appellant and others distributed satirical literature and maintained websites critical of the University. One of these was the ‘Ratcatcher’ blog. The University had sought disclosure of the author’s identity in the USA; in subsequent defamation litigation in the UK, the Appellant conceded that he was the author.
The University considered the requests to be a concerted attempt to disrupt its activities by a group of activists undertaking a campaign – effectively a Denial of Service attack in internet parlance. The Commissioner agreed. He also found that some of the requests to the University had been made under pseudonyms.
The Appellant had objected to the Commissioner’s holding of a meeting with the University prior to the issuing of the decision notice. On this, the Tribunal commented that:
“The decision of the IC to meet with the University, while it may be unusual, is within the IC’s powers of investigation. The Tribunal declines to characterise this as creating an inequality of arms that created any unfairness in respect of the Appellant. The IC was, after all, seeking to assess whether the Appellant had been characterised unfairly as vexatious.”
Given the context of the Appellant’s requests and his concerted campaign together with others, the Tribunal had no hesitation in upholding the IC’s findings. There is some further commentary on FOI Man’s blog here.
In contrast, the Tribunal in Gardner v IC and Nottingham City Homes Limited (EA/2011/0054) allowed the appeal, finding that the Appellant’s request had not been vexatious.
The Appellant has been a tenant of Nottingham City Council for more than 30 years. He requested information about public expenditure on neighbouring council flats; his belief was that more money had been spent on the upkeep of other properties than on his. The Commissioner found that, given the context and history of the requests, the Appellant had “stepped over the fine line between persistence and a request being obsessive and unreasonable”.
The Tribunal disagreed. It found that there had been too much focus on the history of relations with the Appellant and a resultant failure to consider the particular request – which the Tribunal considered plainly had a serious purpose – on its merits.
Interesting, the Tribunal did accept that the Appellant’s requests tended to have a harassing effect. In one letter, the Appellant had said this: “Beware the Ides of March, I will have my Retribution.” Nonetheless, this was insufficient to engage s. 14 in these circumstances.