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 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.


In Jeffery Lampert v IC and Financial Services Authority EA/2010/0203, the appellant was involved in a long running dispute with a bank, which had called on his guarantee of a loan and commenced bankruptcy proceedings against him. His MP had raised the matter with the FSA and the appellant believed that this had led to at least one investigation of the bank. The appellant subsequently made a freedom of information request for information held by the FSA recording the outcome of investigations into the bank about the matter and the calculation of the bank’s loss. The Information Commissioner found that any information falling within the scope of the request was the appllant’s personal data and therefore absolutely exempt from disclosure under FOIA. The First-Tier Tribunal found that:

  • there had been no investigation by the FSA of the bank and there was no document in existence which contained a calculation of the bank’s loss;
  • any information falling within the scope of the request would not have been the appellant’s personal data; applying Durantthe Commissioner was wrong to decide, in effect, that, merely because the information requested arose from the appellant’s complaints, it all constituted his personal data;
  • the FSA was entitled to rely on section 14(1) FOIA, in that this was a repeat request and a reasonable interval had not elapsed since the previous substantially similar request; and, further
  • there was ample material from which it could be found that the appellant’s request was vexatious.

In Public Prosecution Service for Northern Ireland v IC and John Collins EA/2010/0109, Mr Collins requested the PPS documentation (excluding names and addresses) relating to a particular criminal damage case. It was not in dispute that section 30(1) FOIA was engaged and the only issue for the First-Tier Tribunal was whether the public interest in maintaining the exemption outweighed the public interest in disclosure. The Tribunal accepted that it had to take into account the need for prosecutors to have a safe space in which to decide whether or not a case met the threshold for pursuing a prosecution, without fear of frank assessments being publicised after the event. Eroding this safe space would undermine the independence of prosecution authorities, compromise the quality of decision making, potentially deter witnesses from co-operating and undermine (without good reason) public confidence in those authorities. The Tribunal held that these factors attracted very substantial weight. The Tribunal found, having considered the disputed information, that there was no reason to suspect that the prosecuting authority had made substantial mistakes in this case. The public interest in maintaining the exemption therefore clearly outweighed the public interest in disclosure.


Little v ICO and Welsh Assembly Government (EA/2010/0072) is the latest application of the principles in DBERR v IC and Platform (EA/2008/0096) concerning “manifestly unreasonable” requests under regulation 12(4)(b) EIR. In particular, it deals with a public authority’s reliance on that exemption based on the excessive time which would be required to comply with the request.

The Tribunal confirmed that manifest unreasonableness – whilst not a condemnatory term – did imply a higher threshold than mere unreasonableness. A certain obviousness was required. Beyond that, no more precise definition could be given, and terms such as “self-evidently” were not applicable. The cost of compliance is relevant, but only as one factor among many. A request may be manifestly unreasonable if the cost of compliance is disproportionate the importance of the issue, or if compliance would divert resources so as significantly to disrupt the public authority’s normal activities. These, however, are only examples, and each case must be decided on its own facts. On the facts of this case (which concerned information on the disposal of land owned by Forestry Commission Wales for the purposes of wind farm development) the requests were manifestly unreasonable.

Two points of general interest emerge.

First, the “cost of compliance” provision under section 12 FOIA may not be used as a yardstick for determining manifest unreasonableness under regulation 12(4) EIR. The provisions are entirely separate, and one offers no guidance on the other.

The second is that compliance with the duty to advise and assist under regulation 9 EIR is a precondition for reliance on regulation 12(4)(c) (the exemption applicable where a request is too general) – but not for reliance on manifest unreasonableness under regulation 12(4)(b). This does not mean, however, that the duty to advise and assist is irrelevant to regulation 12(4)(b). The Tribunal was clear that “a public authority should expect, in the appropriate case, to have to engage with the request, and the requester, to consider whether a more manageable and reasonable formulation of the request can be achieved, before refusing a request for being manifestly unreasonable”.

The Tribunal also observed that the preparation of a 20-page list of files which might contain the requested information was not required under regulation 9 in this case – but once such a list has been prepared, the failure to provide the requester with a copy might cast a public authority’s efforts under regulation 9 in an unfavourable light.


FOIA requesters can be very difficult to deal with. Some may bombard public authorities with requests, to the point where they disrupt the authority’s ordinary work, perhaps with an obsessive focus on a particular issue. Some will use FOIA to try and re-open matters that have already been examined in detail; and it is impossible to achieve closure, because each item of information provided simply becomes a starting-point for more questions. How should public authorities cope with this kind of behaviour?  The obvious recourse is to FOIA section 14(1), which enables a public authority to refuse to answer a request if it is vexatious.

The Information Commissioner has issued guidance on vexatious and repeated requests (last updated in December 2008), which identifies five questions:

– Can the request fairly be seen as obsessive?
– Is the request harassing the authority or causing distress to staff?
– Would complying with the request impose a significant burden?
– Is the request designed to cause disruption or annoyance?
– Does the request lack any serious purpose or value?

According to the Commissioner, a public authority should generally be able to make out a reasonably strong case under at least two of these headings, if it is to reject a request as vexatious.

Two recent Tribunal decisions consider whether requests were rightly treated as vexatious.

In Rigby v Information Commissioner and Blackpool, Flyde and Wyre Hospitals NHS Trust the requester’s underlying complaint was about his mother’s death in hospital. He complained to the Healthcare Commissioner about the treatment given, and they upheld the complaint and made a number of recommendations for action by the Trust. He then made a series of FOI requests about the implementation of those recommendations. The Trust eventually informed him that it would no longer correspond with him about his underlying complaint, and that it was invoking its “Vexatious Complaints Policy” (“the Policy”). The requester then made a FOIA request for information about the introduction and amendment of the Policy; this request was rejected as vexatious by the Trust. The Commissioner upheld the Trust’s position, and the requester appealed to the Tribunal.

The Tribunal set out some general principles at §§27-32. It considered that the Commissioner’s guidance, and the five considerations that it identified, were useful, although they should not lead to an overly structured approach.

The Tribunal referred to a number of the earlier cases, and set out the following principles:

• Section 14(1) is concerned with whether the request is vexatious in terms of the effect of the request on the public authority, and not whether the applicant is vexatious.

• In the absence of a definition of “vexatious” in FOIA, it must be assumed that Parliament intended the term to be given its ordinary meaning. By its ordinary meaning, the term refers to activity that “is likely to cause distress or irritation, literally to vex a person to whom it is directed”.

• The focus of the question is on the likely effect of the activity or behaviour. Is the request likely to vex?

• For the request to be vexatious, there must be no proper or justified cause for it.

• It is not only the request itself that must be examined, but also its context and history. A request which when taken in isolation, is quite benign, may show its vexatious quality only when viewed in context. That context may include other requests made by the applicant to that public authority (whether complied with or refused), the number and subject matter of the requests, as well as the history of other dealings between the applicant and the public authority. The effect a request will have may be determined as much, or indeed more, by that context as by the request itself. This is in marked contrast to other types of FOIA appeals where the Tribunal is said to be strictly applicant and motive blind.

• The standard for establishing that a request is vexatious should not be set too high. Equally, however, it should not be set too low. The judgment that section 14(1) calls for is balancing the need to protect public authorities from genuinely vexatious requests on the one hand, without unfairly constraining the legitimate rights of individuals to access information.

The Tribunal then gave a series of examples of considerations that had been held relevant in the decided cases, as follows:

• where the request forms part of an extended campaign to expose alleged improper or illegal behaviour in the context of evidence tending to indicate that the campaign is not well founded or has no reasonable prospect of success;

• where the request involves information which has already been provided to the applicant;

• where the nature and extent of the applicant’s correspondence with the authority suggests an obsessive approach to disclosure;

• where the tone adopted in correspondence by the applicant is tendentious and/or haranguing and demonstrates that the applicant’s purpose is to argue and not really to obtain information;

• where the correspondence could reasonably be expected to have a negative effect on the health and well-being of the employees of the public authority;

• where the request, viewed as a whole, appears to be intended simply to reopen issues which have been disputed several times before, and is, in effect, the pursuit of a complaint by alternative means;

• where responding to the request would likely entail substantial and disproportionate financial and administrative burdens for the public authority;

• where the same requests have been made repeatedly, or where on repetition, the particulars of the requests have been varied making it difficult to know exactly what the requester is seeking and making it less likely that the request can be satisfied; and

• where providing the information requested previously has tended to trigger further requests and correspondence, making it unlikely that a response ending the exchange of correspondence could realistically be provided.

The Tribunal agreed that this particular request was vexatious. On its face it was straightforward; but viewed in context it was part of a continuing campaign relating to the Trust’s treatment of  the requester’s mother, and that campaign had become obsessive. Any response would have been likely to trigger further requests. There had been numerous previous requests: according to the Commissioner, the Trust had fielded 56 separate requests from the Appellant on 16 different dates, though the requester disputed these figures. The Tribunal accepted that, whatever the requester’s intentions, the effect of his requests had been to vex, that is, to cause distress or irritation, given the language of the requests and the repeated allegations of bad faith against Trust employees.

In Young v Information Commissioner the requester was an individual who had been prosecuted and convicted. He subsequently made a number of complaints about his arrest and detention, which were considered by the Independent Police Authority. A FOIA request to the relevant police force was rejected as vexatious, and the Commissioner upheld the authority’s handling of the request. On appeal, the Tribunal approved the approach taken in Rigby at §§27-32. It considered that the request was obsessive, might in some respects involve harassment of the authority’s staff, and lacked serious purpose or value. On balance (though narrowly) the Tribunal accepted that the request was vexatious. However, the Tribunal emphasised that it was not suggesting that the requester was himself vexatious, and did not doubt that he sincerely believed himself to have been badly wronged.

The last point is important. Section 14(1) is about vexatious requests, not vexatious people. There is no power to treat someone as a vexatious requester (i.e. as a person who is no longer entitled to make FOIA requests to the authority). Each individual request must be considered on its merits. And of course the decision to treat a request as vexatious may lead to a complaint to the Commissioner, and then an appeal to the Tribunal. Hence, if a request is easy to answer, it may well be less time-consuming to respond to it rather than to treat it as vexatious – even where the latter course would be justifiable.