ICO cannot have a second go

March 25th, 2014 by Robin Hopkins

Okay, the following points are mainly about procedure, but they are nonetheless quite important for those involved in FOIA litigation before the Tribunals. These points come from a pair of recent Upper Tribunal decisions, both arising out of requests from the same requester.

One is IC v Bell [2014] UKUT 0106 (AAC): Bell UT s58. Question: suppose the First-Tier Tribunal thinks the ICO got it wrong in its decision notice. Can it remit the matter to the ICO for him to think again and issue another decision notice on the same complaint? Answer: no, it can’t; it must dispose of the appeal itself. There are some exceptions, but that is the general view with which parties should approach Tribunal litigation.

That Bell decision also comments on the importance, in relevant circumstances, of the Tribunal ensuring that it gets the input of the public authority and not just of the ICO, as there will be cases where only the public authority can really provide the answers to questions that arise at the Tribunal stage.

That same Bell decision also explores this point, for those with an interest in FOIA and statutory construction (surely there are some of you?): under s. 58 of FOIA, unless the Tribunal is going to dismiss an appeal, it must “allow the appeal or substitute such other notice as could have been served by the Commissioner” (my emphasis). That is curious. Quite often, Tribunals do both of those things at the same time. What to make of this? Judge Jacobs explains in the Bell decision.

There was also a second Bell appeal on the same day: Bell UT s14. Same Bell, different public authority and separate case: IC and MOD v Bell (GIA/1384/2013). This was about s. 14 of FOIA (vexatious requests). The public authority had provided lots of detail about the background to the series of requests to make good its case under s. 14. But there was a paper hearing rather than an oral one and the Tribunal appears to have overlooked some of that detail and it found that s. 14 had been improperly applied.

Judge Jacobs overturned that decision. One reason was this: when a binding and decisive new judgment (here, Dransfield) appears between the date of a hearing and the date of the Tribunal’s final deliberations, justice requires that the parties be given an opportunity to make submissions on the application of that judgment.

Another was that the Tribunal had failed properly to engage with the documentary evidence before it. “That is why the papers were provided: to be read. A tribunal is not entitled to rely on the parties to point to the passages that it should read and to look at nothing else” (my emphasis). This underlined point is obviously of general application to Tribunal litigation.

Robin Hopkins @hopkinsrobin


Vexatious and manifestly unreasonable requests: definitive guidance from the Upper Tribunal

February 7th, 2013 by Robin Hopkins

Public authorities often have cause to consider whether to treat requests for information as vexatious (section 14 of FOIA) or manifestly unreasonable (regulation 12(4)(b) of the EIR). Precise definitions of those terms are difficult to pin down. They are not supplied by legislation. There is no binding authority from appellate courts or tribunals on their meaning in the information rights context. The Information Commissioner’s guidance is long-standing, but First-Tier Tribunals vary in the extent to which they use that guidance.

In three distinct but related decisions published today, the Upper Tribunal (Judge Wikeley) has filled this gap, providing what is (for now) the definitive, binding guidance on what vexatiousness and manifest unreasonableness mean in this context, and how reliance on those provisions should be approached. The cases are Dransfield, Craven and Ainslie, with Dransfield serving as the lead case (for summaries of the first-instance decisions, use Panopticon’s search function).

The key principles of general application are summarised below, followed by observations on the three specific appeals.

What kind of a creature is section 14 of FOIA?

Section 14 is not stricly speaking an ‘exemption’. The purpose of the exemptions in Part 2 of FOIA “is to protect the information because of its inherent nature or quality. The purpose of section 14, on the other hand, must be to protect the resources (in the broadest sense of that word) of the public authority from being squandered on disproportionate use of FOIA (to that extent I agree with the observations of the FTT in Lee v Information Commissioner and King’s College Cambridge EA/2012/0015, 0049 and 0085 at [50])… To that extent, section 14 of FOIA operates as a sort of legislative “get out of jail free card” for public authorities. Its effect is to relieve the public authority of dealing with the request in issue, except to the limited extent of issuing a refusal notice as required by section 17. In short, it allows the public authority to say in terms that “Enough is enough – the nature of this request is vexatious so that section 1 does not apply.”” (Dransfield, paras 10-11).

What does ‘vexatious’ mean in this context?

“’Vexatious’ is a protean word, i.e. one that takes its meaning and flavour from its context.” The dictionary definition is only a starting point: irritation or annoyance alone does not suffice – public scrutiny may be irritating or annoying to some, but it is the essence of FOIA.

“The question ultimately is this – is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA?” (Dransfield, para 43).

Guidance and illustrations

Judge Wikeley offered illustrative guidance under four headings (see the discussion at paras 28-39 of Dransfield). At para 28, he said this:

“Such misuse of the FOIA procedure may be evidenced in a number of different ways. It may be helpful to consider the question of whether a request is truly vexatious by considering four broad issues or themes – (1) the burden (on the public authority and its staff); (2) the motive (of the requester); (3) the value or serious purpose (of the request) and (4) any harassment or distress (of and to staff). However, these four considerations and the discussion that follows are not intended to be exhaustive, nor are they meant to create an alternative formulaic check-list. It is important to remember that Parliament has expressly declined to define the term “vexatious”. Thus the observations that follow should not be taken as imposing any prescriptive and all encompassing definition upon an inherently flexible concept which can take many different forms.”

Background and context can be highly relevant. As to burden, questions of volume, breadth, pattern and duration of requests may be relevant. Note, however, that volume alone might not be decisive. Furthermore, an individual request can be vexatious.

While FOIA is axiomatically motive blind, “the proper application of section 14 cannot side-step the question of the underlying rationale or justification for the request” (Dransfield, para 34).

Series of requests can sometimes start out innocuously, but fall into “vexatiousness by drift” (Dransfield, para 37).

As to serious purpose or value, “the weight to be attached to that value or serious purpose may diminish over time. For example, if it is truly the case that the underlying grievance has been exhaustively considered and addressed, then subsequent requests (especially where there is “vexatiousness by drift”) may not have a continuing justification” (Dransfield, para 38).

Notes of caution

Judge Wikeley confirmed that the term ‘vexatious’ here applies to the request, not the requester (Dransfield, para 19).

He also warned that the right to deem a single request vexatious “should not be seen as giving licence to public authorities to use section 14 as a means of forestalling genuine attempts to hold them to account” and that “a lack of apparent objective value cannot alone provide a basis for refusal under section 14, unless there are other factors present which raise the question of vexatiousness. In any case, given that the legislative policy is one of openness, public authorities should be wary of jumping to conclusions about there being a lack of any value or serious purpose behind a request simply because it is not immediately self-evident” (Dransfield, paras 36 and 38 respectively).

Where does this leave the Commissioner’s guidance?

The guidance remains valuable, but the ‘five factors’ are at best ‘pointers to potentially relevant considerations’; they are a means to an end (the end being the ‘ultimate test’ – see above) (Dransfield, paras 39-45).

Is the test for ‘manifest unreasonableness under the EIR any different?

A short answer: no (Craven, para 30).

Regulation 12(4)(b) is different to section 14 in three ways. “First, section 14 excuses the public authority from responding, but is not formally a FOIA exemption, whereas regulation 12(4)(d) is structurally an exception under the EIR. Second, the EIR provision is expressly subject to a public interest test. Third, under the EIR there is a presumption in favour of disclosure (see regulation 12(2))” (Craven, para 19).

However, the approach to this provision is the same as the approach to section 14 of FOIA (see above), both for analytical reasons and pragmatic ones (if the approach is the same, the question of which regime applies need not be analysed).

Unlike FOIA, the EIR do not have a separate exception for cost of compliance. Regulation 12(4)(b) is the provision relied upon when the cost of compliance is disproportionate. What about FOIA? Can section 14 be used even where section 12 might also have been an option (as has been argued at First-Tier level: see the IPCC and TieKey cases, for example)? The Upper Tribunal’s answer is yes, it can. Judge Wikeley did, however, say this (Craven, para 31):

“Notwithstanding the above, if the public authority’s principal reason (and especially where it is the sole reason) for wishing to reject the request concerns the projected costs of compliance, then as a matter of good practice serious consideration should be given to applying section 12 rather than section 14 in the FOIA context. Unnecessary resort to section 14 can be guaranteed to raise the temperature in FOIA disputes. In principle, however, there is no reason why excessive compliance costs alone should not be a reason for invoking section 14, just as may be done under regulation 12(4)(b), and in either case whether it is a “one-off” request or one made as part of a course of dealings.”

The outcomes in the individual appeals

In Dransfield (which concerned a series of requests about lightning protection measures), the appeals by the Commissioner and the public authority succeeded. The request fell within section 14. Judge Wikeley concluded inter alia that:

“I have no hesitation in accepting Mr Cross’s primary submission. The FTT adopted too restrictive an approach to the application of section 14 in paragraphs [31]-[38] of the reasons for the decision. In particular, the FTT relied on an unwarranted distinction between two types of case in which there has been a past course of dealings. The FTT’s view was, in effect, that where the link between the request in issue and the previous course of dealing was one of subject matter alone, then the public authority could not treat the request as vexatious on the basis of that course of dealing, whatever other considerations might suggest. On the FTT’s approach, there had to be some “underlying grievance”, not simply a “similarity of subject matter” in order for section 14 to bite.”

In Craven (which concerned a series of requests about high voltage electric cables), the requester’s appeal was allowed on the questions of adequacy of reasons and the failure of the FTT to set out the reasons for the dissenting minority view, but the Upper Tribunal re-made the decision and concluded that section 14 and regulation 12(4)(b) had been correctly applied by the public authority.

In Ainslie, the requester’s appeal was allowed. He was found to have been acting firmly in the public interest, and “the FTT failed to find sufficient facts, and in particular to resolve certain important disputed issues on the evidence before it, and in doing so failed to provide adequate reasons for its decision” (Ainslie, para 26).

Other important points

These decisions also contain a number of points of general application beyond the vexatiousness context. All those involved in Tribunal litigation should note the following points.

The Upper Tribunal has held that, where a FTT decision is a majority one rather than unanimous, the FTT will err if it fails to set out the reasons for the minority view (Craven, para 42).

Further, while not a new point, the Upper Tribunal has confirmed the importance of FTTs giving adequate reasons (whether unanimous or majority decisions) to allow parties to know why they won or lost.

Judge Wikeley has cautioned that strike-out applications in information rights matters should not be resorted to lightly, but should only follow careful consideration (Craven, para 94).

Where section 14 or regulation 12(4)(b) are relied upon, “every effort should be made to ensure that the parties can participate in an oral hearing. This allows the relevant issues to be properly explored in a way that is simply not always possible on the papers” (Craven, para 95).

Tribunals should also be “more alive to the importance of making their processes accessible to ordinary citizens acting without the benefit of professional representation… was the request vexatious or manifestly unreasonable (or not)? The appellate process in such a case needs to focus on that question, rather than indulge in legalistic point-scoring. Tribunals are for users, after all, not just (if at all) for lawyers” (Craven, para 96).

Finally, Judge Wikeley observed that the preponderance of section 14 cases at Tribunal level was no reflection on the general usage of FOIA. At para 83 of Dransfield, he made this observation:

“As the American legal theorist Professor Karl Llewellyn wisely observed, litigated cases are inherently “pathological”; they bear the same relation to the broader set of disputes “as does homicidal mania or sleeping sickness, to our normal life” (The Bramble Bush (1960), p.58).”

For those who spend much of their life litigating, these last points are food for thought.

Tom Cross appeared for the Commissioner in all three appeals. Rachel Kamm and James Cornwell appeared for the public authorities in Dransfield and Craven respectively.

Robin Hopkins


Update on recent Tribunal decisions part 1: the evolving approach to vexatiousness and manifest unreasonableness

November 4th, 2012 by Robin Hopkins

In recent months, the major information law issues have involved the government’s vetoing disclosure of the Prince Charles ‘black spider’ letters, its response to the draft new EU Data Protection Regulation, a number of Article 8 decisions concerning police and criminal records and changes to RIPA. On this last point, note that as of last Thursday, local authorities require a magistrate’s approval for authorising directed surveillance.

There have also been a number of First-Tier Tribunal decisions of late, touching on some of the issues most commonly encountered by public authorities and requesters. Over the next week, Panopticon brings you a summary of these recent decisions, beginning with insights into “vexatious” (s. 14(1) of FOIA) or “manifestly unreasonable” requests (regulation 12(4)(b) of the EIR). These are cases in which the underlying concepts appear straightforward, but their practical application can often be tricky. These provisions are important for those – local authorities in particular – who need to make robust judgment calls about persistent and burdensome exercises of rights to information.

Requests by members of groups: aggregate with caution

The potential pitfalls for public authorities are illustrated by Pringle v IC and Bury MBC (EA/2012/0062), where the Tribunal overturned a s. 14(1) decision. The case concerned a prominent site, the Longfield Suite in Prestwich, to which the local “Save our Suite” group was committed. Mr Pringle was a member of that group; his one and only request for information had 11 parts, some of which apparently chimed with the group’s history of requests about business plans for the Suite.

The Council’s s. 14 decision was based on this collective pattern of requests and its resultant burden. On the evidence, however, the Tribunal found that the Council and the IC had too readily treated Mr Pringle’s requests together with those of the campaign group, and had given too much weight to questions asked through other fora, such as public meetings, the Audit Commission and the local MP. These were “legitimate avenues of enquiry, outside of the Freedom of Information Act and necessary in a democratic society.” The Council had also failed to ask Mr Pringle to narrow his request, and had not sought to answer as much of the 11-part request as possible.

One-man investigations can cross the line

In contrast, in Bragg v IC and Babergh DC (EA/2012/0107), the Tribunal upheld a refusal based on regulation 12(4)(b) of the EIR. The Council had taken enforcement action, culminating in an injunction and consent order, against a landowner (not the requester) for impermissible use of a private airfield.

The requester sought information about the enforcement and associated legal actions, his belief being that information was improperly withheld during disclosure for a planning inquiry. He questioned the “honesty and integrity” of the witnesses and argued that there was nothing in the EIR to prevent it being used as an investigative tool for the exposing of what the requester alleged was unlawful conduct which the public authority had covered up.

The Tribunal was unimpressed by his allegations. It concluded that:

“The Appellant has not challenged the High Court decision… by way of any of the routes of challenge such as judicial review or even direct complaint to the police and/or the Crown Prosecution Service. He appears to have set himself up as an investigator of wrongdoing that he perceives but he has not allowed other more appropriate bodies to investigate and consider any of the issues he believes lie at the heart of his information requests.”

The Tribunal found that he had crossed the thin line between persistence and obsession, straying into unreasonableness and becoming hectoring in his tone of enquiry in his 14 requests to the Council.

The Tribunal also took into account that Babergh District Council is a small public authority, with limited resources to devote to information requests.

Interestingly, the Commissioner submitted that, because this request was vexatious, the requester was not entitled to seek the same information in future requests. Here the Tribunal disagreed: “If the request is made several years from the date of the original there may well be entirely different considerations in play. At the very least, whether the request could be regarded as manifestly unreasonable after the passage of several years without other requests on the same matter in the intervening period would have to be re-examined and judged on the facts at that time”.

Conspiracy theories: groups and individuals

The Tribunal’s decision in Beswick v IC and Thames Valley Police (EA/2012/0040) draws together some of the themes discussed above. The requester sought information about the position in which the body of Dr David Kelly, the weapons inspector whose death in 2003 was investigated by the Hutton Inquiry, was found. He contributed to online discussion groups focusing on suspicions about Dr Kelly’s death and dissatisfaction with the conclusions of the Hutton Inquiry. Some other members of those groups had also made requests for related information to the same police authority. It contended that these requests were made in concert, and that this reinforced its reliance on s. 14 in refusing Mr Beswick’s request.

The Tribunal’s approach was first to consider Mr Beswick’s request in isolation. It noted the Commissioner’s long-standing five-part guidance on applying s. 14, but “felt that there was a compelling counter-argument that the Commissioner’s guidance should not even guide the Tribunal’s deliberations since this might have the appearance of giving  the approach of one party a higher status than those from the other parties”. The same point was made by the Tribunal in E Rex Makin v IC and Legal Services Commission (EA/2011/0163).

The Tribunal in Beswick did, however, derive assistance from the sorts of questions considered by the Tribunal in the oft-cited case of Rigby v IC and Blackpool NHS Trust (EA/2009/0103); [2011] 1 Info LR 643. These questions include: whether the request formed part of an extended and unfounded campaign to expose alleged improper or illegal behaviour, whether there was a tendentious and haranguing tone, whether the request indicated obsessiveness and the overall burden imposed (by Mr Beswick’s requests only, excluding those of the other members of the online discussion groups). By applying these factors and in light of the Hutton Inquiry’s conclusions, the police’s reliance on s. 14 was upheld.

Unreasonable burden can suffice for a s. 14 finding

Historically, the Commissioner and Tribunal have been reluctant to support reliance on s. 14(1) for reasons solely attributable to the cost and burden of compliance with the request. It was felt that s. 12 was intended to cater for those concerns. The costs of redaction, however, cannot be taken into account for s. 12 purposes. In Salford CC v IC and TieKey Accounts (EA/2012/0075), the Council sought to rely on s. 14 to argue that the burden imposed by the redactions that were likely to be required in order to comply with the request was unreasonable and disproportionate. The Commissioner initially disagreed, but – following the decision Independent Police Complaints Commission v IC (EA/2011/0222) – agreed that cost burden alone could support reliance on s. 14. The Tribunal in Salford agreed, and the Council’s appeal was allowed.

The evolving approach

As the above decisions illustrate, there is no uniform approach to s. 14 at a Tribunal level. The Commissioner’s five guiding questions remain helpful, but Tribunals are increasingly disinclined to give them much weight at all. A broader, dictionary-definition approach is preferred by some Tribunals, who ask simply whether the request tends to cause unjustified trouble or interference (see for example Graham and Ainslie). The questions posed in Rigby can, depending on the case, be very instructive. There is an increasingly strong case for giving the cost burden serious weight under s. 14.

Two upcoming developments should be followed with care. First, the Commissioner is in the process of revising his guidance on how to approach s. 14. Secondly, the Upper Tribunal is to hear a number of appeals on these issues together in the coming weeks: Ainslie, Dransfield and Craven. Its decision will hopefully bring some clarity to these issues.

In general however, most cases of this type turn on the quality of the evidence and the public authority’s efforts to be reasonable. That is likely to remain true whatever these new developments bring.

Robin Hopkins



April 4th, 2012 by Robin Hopkins


The First-Tier Tribunal’s recent decision in Independent Police Complaints Commission v IC (EA/2011/0222) is very interesting and important. It concerns sections 14 (vexatious requests) and 12 (cost of compliance) of FOIA. The Tribunal has confirmed in resounding terms that cost alone can justify a section 14 finding, that a requester’s improper motive is relevant for section 14 purposes, and that the principle of aggregation of costs across separate requests is to be interpreted widely. On all these points, this decision will be welcomed by public authorities responding to unduly burdensome FOI requests.

The case concerned a requester with a keen interest in the work of the IPCC. The Tribunal said that his pattern of requests “focussed on no particular topic but appeared to range widely, even indiscriminately, over the whole spectrum of complaints that the IPCC investigates”. In particular, this case was concerned with two requests. One asked for IPCC managed investigation reports over a 3-year period (covering some 438 cases), the other was a multi-part request about a specific case which had been the subject of an earlier request. The IPCC had clearly had enough. It applied section 14 in refusing both requests.

While the Commissioner sympathised with aspects of the IPCC’s position (cost burden in particular), his overall conclusion – based on his five guiding questions for section 14 cases – was that the requests were not vexatious.

At Tribunal level, the IPCC relied on both section 14 and section 12. The Tribunal found in its favour on both counts.

Section 14 (vexatious requests)

On vexatious requests, the decision is worth quoting in some detail. At paragraph 14, it – like a number of Tribunals in recent cases – disapproved of an overly rigid application of the Commissioner’s five questions:

“The Tribunal considers that these requests were plainly vexatious when considered in the context of earlier requests or indeed in isolation. The criteria proposed in the ICO`s guidance are very helpful as a reference point. However, an approach which tests the request by simply checking how many of the five “boxes” are “ticked” is not appropriate. It is necessary to look at all the surrounding facts and apply them to the question whether the request is vexatious, a term not defined in FOIA but familiar to lawyers.”

It also found that cost alone can suffice for a section 14 finding – see paragraph 15:

“A request may be so grossly oppressive in terms of the resources and time demanded by compliance as to be vexatious, regardless of the intentions or bona fides of the requester. If so, it is not prevented from being vexatious just because the authority could have relied instead on s.12”.

This will be welcomed by those who find themselves unable to rely on section 12 due to the restricted list of activities which can be taken into account for cost purposes.

While cost can suffice regardless of motive, the Tribunal was emphatic that motive is relevant for section 14 purposes. In trenchant terms, it urged responsible use of FOIA (see paragraph 19):

“Abuse of the right to information under s.1 of FOIA is the most dangerous enemy of the continuing exercise of that right for legitimate purposes. It damages FOIA and the vital rights that it enacted in the public perception. In our view, the ICO and the Tribunal should have no hesitation in upholding public authorities which invoke s.14(1) in answer to grossly excessive or ill – intentioned requests and should not feel bound to do so only where a sufficient number of tests on a checklist are satisfied.”

In the present case, the Tribunal was not convinced of the requester’s good faith, and it considered his requests to be “not just burdensome and harassing but furthermore wholly unreasonable and of very uncertain purpose and dubious value, given the undiscriminating nature of the first request”. It had no hesitation in finding that section 14 had been correctly applied to the first request.

Section 12 (cost of compliance)

This provision was relied upon by the IPCC for the first time before the Tribunal. Interestingly, the Tribunal interpreted the Court of Appeal’s judgment on the late reliance issue (under the EIRs) in Birkett as meaning that the IPCC could rely on section 12 of FOIA late as of right – despite the Upper Tribunal’s rather different approach in APPGER (which is not referred to in this decision).

It was agreed that the cost limit was reached for the first request. The issue was whether section 12 applied to the second request. This turned on whether the costs of complying with that request could be aggregated, ie taken together with those for the first. Aggregation is provided for under the Information and Data Protection (Appropriate Limits and Fees) Regulations 2004. By regulation 5(2)(a), costs can be aggregated for requests which “relate, to any extent, to the same or similar information”. The Tribunal agreed with the IPCC that the requests in this case came within that provision. It said as follows (paragraphs 25-26):

“The second request was for specific details of a report which was a subject of an earlier request than those with which this appeal is concerned. It was the same kind of report as the 438 reports requested in the first request. We agree with the IPCC that the wording of Regulation 5(2) (a), for good reason, requires only a very loose connection between the two sets of information, hence the insertion of “to any extent” and “similar”. The information covered by the second request was quite obviously very similar in character to that described in the first. They were simply different reports.”

From a public authority perspective, this broad approach will be a welcome departure from the more restrictive analysis in cases such as Benson.

For a different take on the IPCC case, see this post from the ever-incisive FOI Man.

Robin Hopkins



March 10th, 2012 by Robin Hopkins

In many cases concerning s. 14(1) of FOIA – vexatious requests – a relevant factor is that the requester has complained about the conduct of an employee, but that complaint has not been upheld. Ensuing requests are often considered by some to be harassing and obsessive. The Tribunal has recently overturned a decision notice in which the Commissioner had agreed with the local authority on those points.

Conway v IC (EA/2011/0224) concerned a requester who had been in communication with the Council for some years, in the course of which he had raised concerns that the role of “Senior Responsible Officer” and the “Section 151 Officer” were held by the same individual, which, in his view, represented a conflict of interests. His complaint to the Chartered Institute of Public Finance & Accountancy was not upheld. He had sight of the redacted version of its investigation report. He then contacted the Council with a number of detailed questions about its input into the Institute’s investigation.

The Council refused the request, relying on s. 14(1). The Commissioner agreed. The Tribunal did not.

The Tribunal found that “harassing” should be given its ordinary meaning, that is, to disturb persistently, bother continually, pester or persecute. In this case, the Council officer concerned was very senior; the subject matter concerned a high profile project that involved many millions of pounds of public money over 10 years. This had attracted a high degree of public interest in the press and on the internet. The Tribunal found that, in such circumstances, the public is likely to raise questions, and “such questions may be numerous and may on occasion be repeated”. It was not satisfied that a “harassing effect” had been demonstrated. The present case was, in the Tribunal’s view, entirely unlike the leading s. 14 case of Rigby v IC and Blackpool NHS Trust [2011] I Info LR 643.

The Council had also argued that the requester’s complaint giving rise to the Institute’s investigation constituted harassment of the senior Council officer. The Tribunal disagreed: it found “no evidence of a personal attack or comments of a provocative nature made by the Appellant against the named council employee”.

The Tribunal also disagreed that the request was obsessive: the request was concise and precise, and arose out of the Institute’s report which had recently been received – in those circumstances, the Tribunal could not see any relevant context or history which would demonstrate obsessiveness.

The Tribunal also observed that “whether the request creates a “strain on resources”, that is not relevant to the question of whether it is vexatious. If the Council wished to argue that they ought not to be required to comply with the request on this basis, then it ought to have relied on section 12 FOIA. It did not do so.”

The Council was ordered to deal with the

Robin Hopkins



November 7th, 2011 by Robin Hopkins

Readers with an eye on the correct application of section 14 of FOIA – vexatious requests – will be familiar with the ICO’s guidance on and approach to deciding whether a request meets that definition. The touchstones are obsessiveness, imposing a significant burden, lacking a serious purpose and/or causing distress, disruption or annoyance. The Tribunal has on many occasions approved those touchstones as being useful guidance. Two very recent decisions, however, have seen the Tribunal preferring to emphase a common-sense and dictionary-led approach in preference to a checklist of tests: see Graham v IC (EA/2011/0133-34) and Ainslie v IC and Dorset County Council (EA/2011/0097).

This fresh emphasis is encapsulated in the following words of the Tribunal:

“While the Information Commissioner may have developed his own guidance with respect to this matter; from the perspective of the tribunal the common sense application of the ordinary meaning of the word to the actual circumstances of an individual case must be the correct approach to adopt. The Oxford English dictionary provides useful guidance as to the meanings of vexatious and associated words. While this guidance extends over several columns it seems to the tribunal that a definition of “tending to cause trouble or harassment by unjustified interference” fairly summarises the meaning.”

Robin Hopkins