Costs and Vexatiousness: Upper Tribunal Updates

August 3rd, 2018

The procedural exemptions in sections 12 and 14 of FOIA are some of the most commonly used, and most commonly litigated, provisions of the legislation. Unsurprisingly, they have led to a disproportionate degree of appellate involvement. More surprisingly, they continue to do so. Three recent Upper Tribunal decisions add to that body of jurisprudence which ought to be considered by authorities faced with burdensome requests. This post is, as a result, quite burdensome itself.

The first case to consider is Kirkham v Information Commissioner [2018] UKUT 126 (AAC), which although introduced by Judge Jacobs as being a “fascinating case” was in fact about the costs exemption under section 12. The requestor’s argument was essentially one about search methodology. Judge Jacobs was reluctant to impose over FOIA any particular approach, reiterating that “FOIA imposes an obligation on a public authority to provide the information requested” and that “I do not accept that it is permissible to interpret FOIA in a way that is guaranteed not to allow a public authority the chance to comply with its duty. Success may not be guaranteed, but failure cannot under the terms of the legislation be the only option”: at [12]-[13]. If the requestor is content with some less thorough form of search, he must make that clear in the request which sets the scope of the duty: at [14]. But, and this is a point which is often missed by requestors, “a public authority cannot comply with FOIA by providing such information as it can find before section 12 applies”: at [14].

The judgment reiterates that the authority must have actually made an estimate, and then that that estimate must be reasonable, which is subjective to the authority but with an objective element: at [20]. Although it is not for the ICO or the FTT to create their own estimates, they can and should rigorously test the estimate relied upon, including by altering the assumptions. An estimate need not be produced with the level of mathematical rigour which the requestor obviously sought in that case: at [23]. Precision is not required for an estimate, and the authority does not need to go on and estimate every aspect once the threshold has been reached: at [24].

The judgment is a useful recitation and encapsulation of the proper approach to making and testing a reasonable estimate of the costs of compliance, and a reminder that it cannot be side-lined by overlooking that the duty of the authority is to find all the information within the scope of the request actually made.

 

In some cases, a request may pose an extremely costly burden for the authority but those burdens are not ones which it is permitted to rely on for the purposes of section 12; i.e. it goes beyond the location of the information and extends to the review of information for whether exemptions and redactions are required. This is particularly often the case in respect of requests for archival files: the authority knows exactly where the information is, but there is a lot of it and it will require a detailed review exercise. In principle, it is well-established that section 14 can extend to such a case.

Cabinet Office v Information Commissioner & Ashton [2018] UKUT 208 (AAC) was such a case, where the request had been made for some six files relating to British relations with Libya between 1990 and 2002. There was no real doubt that this would take a very considerable amount of time for the Cabinet Office to review, and there was also no real doubt that there was in principle a significant public interest in such material. Section 14 had been relied upon based on the burden alone. The FTT dismissed that reliance on the basis of the public interest in the information, and in one sentence had commented that “Where a clear and substantial public interest in the request has been established, s14 cannot be invoked simply on the grounds of resources”. Not surprisingly, there was an appeal.

Judge Wikeley’s judgment is useful in a number of respects. It is a clear endorsement of the proposition that section 14 can be relied upon in a pure burden context, without any other signs of vexatiousness. It cites with approval the helpful and thorough summary of the section 14 case law set out in CP v Information Commissioner [2016] UKUT 427 (AAC). It makes very clear that CP was right to say that there being a public interest in the information cannot act as a trump card and by itself justify disclosure: at [25] and [27]. From the judgment as a whole, it is tolerably clear that had Judge Wikeley thought the FTT really meant what it had said above then it would have fallen into an error of law. There are no special rules for public interest requests, or ‘burden alone’ requests; the question is always a holistic one.

On the facts, Judge Wikeley concluded that FTT had not actually meant what it had said, and that it had adopted a holistic approach and reached a conclusion it was entitled to reach. There is no suggestion in this case that a very burdensome request will often be outweighed by the public interest in the subject matter, but it does reinforce that it is, at least, possible. What is not permitted is to place any great reliance on the absence of resources, as that would risk undermining the section 1 right: at [50].

 

A more traditional section 14 decision is to be found, amongst various other issues, in Oxford Phoenix Innovation Ltd v Information Commissioner & Medicines and Healthcare Products Regulatory Agency [2018] UKUT 192 (AAC). Judge Markus QC in that case also cited with approval the summary of the section 14 principles from CP (modesty forbids identifying suave counsel from whose submissions that summary was drawn by Judge Knowles). She accepted, at [71], that although the analytical focus is on the request it is usually difficult entirely to divorce that from the requestor where it is the course of conduct which is in issue.

The requestor had, in that case, repeatedly made serious allegations against the MHRA which included likening their regulatory stance on his product to that of social services in respect of ‘Baby P’ and asserting that the MHRA and Department of Health had conducted a meeting to discuss his case which was akin to the Wannsee Conference (at which the Nazis famously determined upon the ‘Final Solution’). The requestor did not seriously depart from this approach at the appeal hearing. Judge Markus notes that “ln the Upper Tribunal hearing [he] said that he was not alleging that the MHRA or its staff were like Nazis, the reference to Wannsee was a reference to the “concept” of what the MHRA was trying to do to him. This is an unconvincing denial of what [he] was undoubtedly doing and is wholly inconsistently with statements which he made in which he clearly compared the MHRA to Nazis.

It was a case, at the Judge held at [87], where there had probably been a genuine and understandable dispute at one point but that the requests had drifted into vexatiousness, and that any proper purpose the requestor had had was overtaken by an impression of pursuing the ‘war’ by any, and every, means available. As a stark and unfortunately classic example of section 14 in action, Oxford Phoenix bears reading.

Other parts of Judge Markus’ judgment are important too. At [50]-[55] she collates the authorities in support of the proposition that the Upper Tribunal is to turn a relatively benevolent eye on the reasoning of the FTT (since cited with approval in Cabinet Office too).

Of particular importance for procedural nerds is a further the discussion of the application of Malnick (on which see here) – indeed the argument prompted an amendment to the key reasoning in Malnick to clarify the wording: see at [21] – on the issue of the extent to which the FTT can remit a successfully appealed decision notice to the ICO. Malnick, of course, says that it cannot be remitted; for better or worse the FTT has to resolve the substantive issues on the appeal. On the particular facts of Oxford Phoenix, Judge Markus thought that precisely the same approach applied: at [28]-[48]. For the most part, the analysis overlaps with that in Malnick.

However, as will appear from the reasoning, the particular concern of the ICO was that the Malnick approach should not prevent an FTT which overturns reliance on, say, sections 12 or 14 (or that information was not held, or that it was being dealt with under the wrong regime) requiring a fresh response to the request responding substantively. In other words, it cannot be sensible that an FTT which finds section 14 was wrongly relied on would then have to go on to decide whether any substantive exemptions applied, as that would undermine the very point of relying on section 14 in the first place. Judge Markus appears to accept the ICO’s point – although did not think it arose on the facts – as to the practicalities of that and, at [47], thought that those concerns were easily dealt with. It is perhaps not absolutely clear from [47] how they are dealt with, but it may be that it is an appellate endorsement of the use of the section 50(4) steps discretion in such cases.

 

Rupert Paines appeared for the ICO in Kirkham.

Aileen McColgan appeared for Professor Ashton in Cabinet Office.

I appeared for the ICO in Oxford Phoenix.

Christopher Knight

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