Vexed by Vexatiousness? The Court of Appeal is Here to Help

The Court of Appeal has today handed down judgment in Dransfield v ICO & Devon County Council; Craven v ICO & Department for Energy and Climate Change [2015] EWCA Civ 454 (Dransfield Craven FINAL JUDGMENT 14 5 15. As people will recall, Dransfield is concerned only with section 14 FOIA, and Craven is concerned with whether the same approach should be adopted under the differently worded regulation 12(4)(b) EIR. For those desperately hoping it would not require completely relearning everything just as everyone was getting used to the Upper Tribunal decisions (on which see Robin’s lengthy screed here), a sigh of relief can be exhaled. Arden LJ gives the only substantive judgment (with which Gloster and Macur LJJ agree), which she helpfully summarises at [5]-[7] and which I set out in full so people with better things to do can stop reading:

5. The appeals raise different and difficult questions. In my judgment, for the detailed reasons given below, this court should dismiss each appeal.  

6. In Mr Dransfield’s case, the request, taken on its own, is a precise and politely-worded request. There is nothing on the face of this request which could be termed “vexatious”. Nonetheless the UT held that it was vexatious because of the past history of dealings between him and the authority. So the principal issue on his appeal is whether a request can treated as vexatious if it is not itself vexatious but previous requests have been. The FTT thought that the line had to be drawn at previous requests which “infected” the request under consideration (“the current request”). The UT rejected that test and held that there was no line to be drawn. Mr Dransfield seeks to uphold the test applied by the FTT. I do not accept this submission because it involves writing words into FOIA which the court may not do. The UT went on to formulate and apply guidance as to the meaning of “vexatious” which he has not challenged.

7. In Mrs Craven’s case, the principal question is whether the tests under section 14 FOIA and regulation 12(4)(b) have the same meaning (“the two-tests-one-meaning issue”). I conclude that to all intents and purposes they do. The next questions are whether the IC could raise an objection under regulation 12(4)(b) when the authority had not done so, whether section 14 (2) affects the meaning of section 14(1) and whether the costs of compliance could be taken into account under both tests (“the costs of compliance issue”). I agree with the UT on those points too. I would therefore dismiss Mrs Craven’s appeal also.”

And so orthodoxy reigns.

As to the detail of the judgment, although it is relatively long (28 pages), when one strips out the annexed statutory provisions, the factual background and the submissions of the parties, the actual analysis only runs from [61]-[73] on Mr Dransfield’s appeal and [74]-[88] on Mrs Craven’s.

In relation to Dransfield, the issue was the degree to which a prior course of conduct of the requestor could infect a request which in and of itself was inoffensive. Arden LJ agreed that no comprehensive or exhaustive definition should be adopted, but considered that the focus should be “on an objective standard and that the starting point is that vexatiousness primarily involves making a request which has no reasonable foundation, that is, no reasonable foundation for thinking that the information sought would be of value to the requester, or to the public or any section of the public“. The test should be a high one to meet, but all relevant circumstances should be considered. Where a motive can be established, that may be evidence of vexatiousness, although if the request is aimed at disclosure of important information which ought to be publicly available then even a “vengeful” request may not meet the test: at [68]. Motive was relevant here; section 14 is an exception to the ordinary approach that the reason why a right is exercised is irrelevant: at [66]. The FTT’s approach had been wrong; there were no bright lines and attempting them was illogical. Evidence of prior requests was capable of throwing light on the current request and the motivation behind it: at [69]. Had it been necessary to do so, the Court would have accepted that the Upper Tribunal had made an unchallengeable finding that the belligerent and unreasonable tone linked to the present request: at [71]. Because, as stressed at [6], there was no challenge to the Upper Tribunal’s general guidance, the Court of Appeal cast no doubt upon it and it will continue to be a useful source of assistance (with the caveat that protection of public resources cannot lower the high standard of vexatiousness required: at [72]).

In relation to Craven, Arden LJ dealt with a slightly wider range of issues. She made further comments on section 14 itself, noting that vexatiousness could not mean a requirement for persistent requests, still less for persistent requests to a range of different authorities, which would not be readily discoverable: at [77]. Section 14(2), on repeat requests, is a separate power which does not assist in interpreting section 14(1): at [82]. A key question in Craven was whether there should be any difference between the two regimes. Arden LJ held that there was not, particularly because section 14 was primarily an objective analysis, which accorded with the natural meaning of “unreasonable“. The word “manifestly” simply means that it must be clearly shown, and does not require detailed investigation by the authority into things it does not know: at [78]. There was no suggestion that the answer would have been any different under section 14: at [79] (although of course CJEU case law may develop in a different direction). One notable aspect of Craven is that it was a single request which was particularly burdensome and costly to deal with, but there was no section 12 equivalent in the EIR, and on this Arden LJ agreed with the Upper Tribunal’s approach: cost of compliance can be taken into account, although those costs would have to be balanced against the benefits of disclosure: at [83]. An unconcluded view was expressed that a higher hurdle might apply to rely on the costs burden under the EIR than FOIA, but no decision was reached: at [84]. The Court was satisfied that a costs burden could indeed apply to section 14: at [85].

We are, as a result, more or less where we were before the Court of Appeal’s judgment. Indeed all it has probably added is the weight of authority in some places and a bit of confusion (mostly around section 14 being objective, which is unhelpfully expressed but not, it appears, substantively different) in others. People can sensibly continue to guide themselves by the much more detailed guidance of the Upper Tribunal, subject to the caveats noted here. All the important clarifications made by the Upper Tribunal survive, and one suspects very limited changes will be required to the ICO’s Guidance. Repeat requestors should beware, particularly if they are unreasonable ones, and those making single but large requests should too.

The ICO was represented in both appeals by Tom Cross; Devon CC by Rachel Kamm and DECC by James Cornwell.

Christopher Knight