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Manifestly unreasonable requests - Regulation 12(4)(b) (Environmental Information Regulations)

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Latest updates - last updated 14 August 2023

14 August 2023 - We have included the following new Further Reading resource:

  • FOI and EIR Video Training Modules - Vexatious, repeated and manifestly unreasonable requests

13 February 2023 - this guidance has been converted to webpage format.

The guidance reflects the Court of Appeal’s decision in Dransfield v Information Commissioner and another & Craven v Information Commissioner and another [2015] EWCA Civ 454 (CA). The court found that manifestly unreasonable requests and vexatious requests (to which section 14 of FOIA could be applied if the information was not environmental) were essentially the same. This has resulted in some changes to the terminology used in the guidance, but the structure remains very similar.

The Tribunal decision Department for Business Enterprise and Regulatory reform v the Information Commissioner and Platform (EA/2008/0097) is no longer cited in the guidance when discussing requests which are manifestly unreasonable solely on grounds of cost or burden. However, the Commissioner remains of the view that you may be required to accept a greater burden in providing environmental information than under FOIA, where a request can be refused if the cost of compliance exceeds a prescribed cost limit.

Under ‘How do we apply the public interest test?’ you are reminded that the Court of Appeal in the Dransfield – Craven case did not rule out the possibility of there being different results under regulation 12(4)(b) than if the information had been considered under section 14 of FOIA.

The Commissioner’s approach to the presumption in favour of disclosure following the Upper Tribunal’s decision in Vesco v IC and the Government Legal Department is explained under ‘How do we apply the presumption in favour of disclosure?’.

About this detailed guidance

This guidance discusses in detail the exception in regulation 12(4)(b) of the Environmental Information Regulations 2004 (EIR) and is written for use by public authorities. Read it if you have questions not answered in the Guide, or if you need a deeper understanding to help you deal with requests.

In detail

What the EIR say

Regulation 12(4)(b) states:

12(4) …, a public authority may refuse to disclose information to the extent that –

(b) the request for information is manifestly unreasonable

General principles

You can refuse a request for information that is manifestly unreasonable. The inclusion of the word “manifestly” means that there must be an obvious or clear quality to the unreasonableness.

The purpose of the exception is to protect public authorities from a manifestly unjustified, inappropriate or improper use of the EIR. We therefore consider the key question you should ask yourself is whether the request is likely to cause a disproportionate cost  or burden, or an unjustified level of distress, disruption or irritation.

This is the same question posed when looking at vexatious requests under section 14(1) of FOIA. Manifestly unreasonable and vexatious are essentially the same. This was confirmed by the Court of Appeal in Dransfield v Information Commissioner and another & Craven v Information Commissioner and another [2015] EWCA Civ 454 (CA) which posed the question, whether the tests under section 14 and regulation 12(4)(b) have the same meaning, before concluding that to all intents and purposes they do (paragraph 7).

Therefore, requests can be manifestly unreasonable for one or more of a wide range of reasons. These may include the burden of dealing with the request, the applicant’s motive, and any harassment or distress caused to staff. These issues are considered in the Commissioner’s guidance on Dealing with vexatious requests – section 14(1). However, before you can rely on regulation 12(4)(b), there are some important additional considerations that are discussed in this guidance.

This guidance considers situations where a request is considered manifestly unreasonable solely because the cost or burden of dealing with it is too great. This includes situations similar to where section 12 of FOIA might apply if the information was not environmental. Section 12 of FOIA says that a public authority need not comply with a request where doing so would exceed a fixed cost threshold known as the appropriate limit. However, there are some significant differences between how regulation 12(4)(b) and section 12 apply, as we explain later.

This additional guidance on where it’s the cost or burden that makes a request manifestly unreasonable is provided because it’s a common reason for applying regulation 12(4)(b). Also, in the Commissioner’s experience, it’s fairly common for a request to be refused under section 12 of FOIA, only for it to be later recognised that the information is environmental.

In theory, there could be other circumstances in which a request might be manifestly unreasonable and you are free to make arguments on other grounds you consider relevant. However, in reality, we expect that the points in this guidance and our guidance on section 14(1) will cover the vast majority of manifestly unreasonable requests.

All EIR exceptions are subject to both the public interest test and the requirement, under regulation 12(2), to apply a presumption in favour of disclosure when considering the exceptions. These issues are discussed later. Both are relevant regardless of whether you are applying regulation 12(4)(b) solely because of cost or burden, or for wider reasons.

The exception is concerned with the nature of the request and the impact of dealing with it and not any adverse effect that might arise from disclosure of the content of the information requested. If you are concerned about the content of the requested information being disclosed, you should consider whether another exception applies. Guidance on all the EIR exceptions can be found via our guidance index.

How do we deal with a request that is manifestly unreasonable for one or more of a wide range of reasons, other than solely because of cost or burden?

As already mentioned, following the Court of Appeal’s decision in Dransfield and Craven, it’s clear that the terms ‘manifestly unreasonable’ and ‘vexatious’ have essentially the same meaning. 

Therefore, if you consider that a request is manifestly unreasonable other than solely because of cost or burden, you should read our detailed guidance on section 14(1) of FOIA.

You will still need to apply the additional considerations of the public interest test and the presumption in favour of disclosure which are discussed later.

If you refuse a request as manifestly unreasonable other than solely because of cost or burdenwe would not expect you to provide the requester with advice and assistance, although you are free to do so if you wish.

How do we deal with a request that is manifestly unreasonable solely because of cost or burden?

Burden can be thought of in terms of cost, including the cost of staff time spent dealing with the request. It can also take account of the distraction of resources, ie the disruption to the delivery of other services caused by staff having to spend time dealing with the request.

Before you apply regulation 12(4)(b) solely because of cost or burden, you should consider whether it’s more appropriate to rely on regulation 7(1) – the provision that allows public authorities to extend the time for complying with a request.

7(1) Where a request is made under regulation 5, the public authority may extend the period of 20 working days referred to in paragraph (2) to 40 working days if it reasonably believes that the complexity and volume of the information requested means that it is impracticable either to comply with the request within the earlier period or to make a decision to refuse to do so.

If taking advantage of the extension to the time for compliance would allow you to respond to the request, the Commissioner would expect you to do so rather than relying on “manifestly unreasonable”.  

General approach

If reliance on regulation 7(1) would not address your concerns, regulation 12(4)(b) can apply. This was confirmed by the Upper Tribunal in the case below.

Example

In Craven v The Information Commissioner and the Department of Energy and Climate Change [2012] UKUT442 (AAC) the Upper Tribunal stated that, “Taking the position under the EIR first, it must be right that a public authority is entitled to refuse a single extremely burdensome request under regulation 12(4)(b) as “manifestly unreasonable”, purely on the basis that the cost of compliance would be too great (assuming, of course, it is also satisfied that the public interest test favours maintaining the exception). The absence of any provision in the EIR equivalent to section 12 of FOIA makes such a conclusion inescapable.” (paragraph 25)

When this case was subsequently appealed, the Court of Appeal affirmed the finding.

In assessing whether the cost or burden of dealing with a request is too great, you will need to consider the level of the costs involved and decide whether they are clearly or obviously unreasonable.

This will mean taking into account all the circumstances of the case including:

  • the nature of the request and any wider value in the requested information being made publicly available;
  • the importance of any underlying issue to which the request relates, and the extent to which responding to the request would shed light on that issue;
  • the size of your organisation and the resources available to you, including the extent to which you would be distracted from delivering other services; and
  • the context in which the request is made, which may include the cost of responding to other requests on the same subject from the same requester.

Differences and similarities to section 12 of FOIA

In assessing whether the amount of staff time involved in responding to a request is sufficient to make a request manifestly unreasonable, the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (the fees regulations) may be a useful starting point. The fees regulations are made under section 12 of FOIA. They establish the cost threshold, known as the appropriate limit, and set out what activities can be taken into account when estimating whether it would be exceeded.

This does not mean that the FOIA fees regulations apply to requests made under the EIR. However, we take these regulations to give a clear indication of what Parliament considered to be a reasonable allocation of resources when dealing with requests in terms of staff time. Under those fees regulations, a government department is expected to commit up to 24 hours of staff time to dealing with a request. For other public authorities it is 18 hours.     

However, it is stressed that the fees regulations only provide an indication of the amount of staff time that’s considered reasonable to commit to dealing with a request. They are not determinative in any way.

Example

In ICO decision notice FS50121519, DBERR, now the Department for Business Innovation and Skills, had originally refused the request under section 12 of FOIA. When the Commissioner alerted the department to the fact that some of the information requested was environmental information, DBERR suggested that if this were the case, the request should still be refused under regulation 12(4)(b) as manifestly unreasonable.

In effect, the department considered that where the cost of complying with the request would have exceeded the appropriate limit set out in the fees regulations, the request could be refused under regulation 12(4)(b).

The Commissioner rejected this argument, clarifying that the fact that responding to a request for environmental information would exceed the appropriate limit if it were dealt with under FOIA, does not automatically mean the request can be classed as manifestly unreasonable.

In this case, the public authority did not present satisfactory evidence for its calculations of cost estimates for complying with the request; this therefore gave the Commissioner good grounds to doubt the public authority’s claim that the request was manifestly unreasonable.

In addition to this, the Commissioner considered how proportionate the burden created by the request would be, and whether complying with the request would involve an unreasonable diversion of resources from the provision of public services.

As DBERR was a large central government department, the Commissioner made the judgement that dealing with this request would not interrupt its normal activities and responsibilities in any significant way.

The Commissioner was satisfied that in these circumstances the request was not manifestly unreasonable, even though the costs of responding would have exceeded the appropriate limit under FOIA fees regulations.

As there is no statutory cost limit above which requests can automatically be refused, you may be required to accept a greater burden in providing environmental information than other information.

Furthermore, as the FOIA fees regulations do not apply under the EIR, there is no specific provision for the aggregation ‘of substantially similar’ requests. Our position, however, is that there may be occasions where it is permissible to consider a number of EIR requests together when deciding if they are manifestly unreasonable because of cost or burden. This is in line with the approach to requests considered manifestly unreasonable on the grounds that they are vexatious in the wider sense, where the context in which they are made can be taken into account.

Example

In ICO decision notice FS50464000 several requests were made on the same day by the same requester. The requests were for information about meetings and correspondence with David Cameron, the then Prime Minister, and various third parties on matters relating to climate change.

The Commissioner carefully considered the wording of each individual request and found that in the circumstances of this case they were similar enough to be considered together for the purposes of applying regulation 12(4)(b). This was on the basis that they all covered the same broad information: the combination of David Cameron and climate change, and that they had all been made by the same requester at the same time.

You need to take care, however, not to apply this principle indiscriminately or too widely. In the above case it was the combination of all those factors that informed the Commissioner’s decision and he was clear that this shouldn’t be taken to mean that all future requests on climate change and meetings with the Prime Minister could necessarily be considered together. We would encourage you to be sensible about this issue and to only use this approach when dealing with multiple requests that would cause a real problem. Remember, the test is “manifestly unreasonable” and this means that there must be an obvious or clear quality to the unreasonableness.   

Under FOIA, you cannot take into account the cost of considering whether information is exempt under section 12 but you can take it into account under section 14(1) (vexatious requests). This is because section 12 limits the activities you can take into account when deciding if the appropriate limit would be exceeded. This is not an issue under the EIR. The costs of considering if information is covered by an exception can be taken into account as relevant arguments under regulation 12(4)(b).

Advice and assistance

When refusing a request for environmental information under regulation 12(4)(b) solely because of cost or burden, you should provide the requester with appropriate advice and assistance. Under regulation 9, you have a duty to provide advice and assistance so far as it is reasonable to expect you to do so.

This will usually involve setting out the costs involved in answering the request and explaining how it might be refined to make it more manageable and, therefore, not manifestly unreasonable. The aim of advice and assistance should be to help the requester submit a new, more manageable, request.

Giving advice and assistance in these situations benefits both the requester and you. A requester may object to their request being characterised as “manifestly unreasonable”. Providing a way forward through advice and assistance may help you develop a constructive relationship with them; enable a situation where, for example, you can give some of the requested information; and should result in fewer requests for internal reviews and complaints to the ICO.    

How do we apply the public interest test?

Regardless of whether regulation 12(4)(b) has been applied because of cost or burden alone or for wider reasons, it is subject to the public interest test. The test is set out in regulation 12(1)(b) and says that even after an exception is engaged, you can only refuse a request if the public interest in maintaining the exception outweighs the public interest in disclosing the information.

You will already have considered many of the issues relevant to the public interest test when deciding if this exception is engaged. This is because, regardless of the basis for applying the exception, you will have had to consider the request’s proportionality and value.

Nevertheless, you must go on to apply the public interest test set out in regulation 12(1)(b). It’s also worth noting that, despite its finding that the tests of vexatiousness under FOIA and manifestly unreasonable under EIR were essentially the same, the Court of Appeal in Craven did not rule out the possibility that applying the public interest test in EIR cases might lead to a different result if the matter were to be considered under FOIA (paragraph 78).

Public interest in maintaining the exception

The public interest in maintaining this exception lies in protecting public authorities from exposure to disproportionate burden or to an unjustified level of distress, disruption or irritation in handling information requests. These will often be similar to the issues you considered when engaging the exception.

Dealing with manifestly unreasonable requests may strain your resources and get in the way of public authorities delivering mainstream services or answering other requests.

Public interest in disclosure

There will always be some public interest in disclosure to promote transparency and accountability of public authorities, greater public awareness and understanding of environmental matters, a free exchange of views, and more effective public participation in environmental decision making, all of which ultimately contribute to a better environment.

The weight of this interest will vary from case to case, depending on the issue’s profile and importance and the extent to which the information will actually inform public debate. As the information will often not have been collated for 12(4)(b) cases, you may have to determine this by considering the nature of the request, the type of information likely to be covered or by collating a small representative sample.

Of course, other factors may act in favour of disclosure, depending on the particular circumstances. For example, these could include accountability for spending public money, the number of people affected by a proposal or any reasonable suspicion of wrongdoing.

How do we apply the presumption in favour of disclosure?

Regulation 12(2) specifically states that you “shall apply a presumption in favour of disclosure” when considering the exceptions.

The Commissioner takes the view that the presumption in favour of disclosure should inform all your decisions under the EIR, including engaging the exception in the first place.

Example

In Vesco v Information Commissioner and the Government Legal Department ([2019] UKUT 247 (AAC), 1 August 2019), the Upper Tribunal took the approach that the presumption in favour of disclosure is a separate stage. That is, it is to be considered if, after engaging the exception, the application of the public interest test did not lead to disclosure. 

“If application of the first two stages has not resulted in disclosure, a public authority should go on to consider the presumption in favour of disclosure under Regulation 12(2) of the EIRs. … the presumption serves two purposes: (1) to provide the default position in the event that the interests are equally balanced and (2) to inform any decision that may be taken under the regulations”. (paragraph 19)

In practice, this approach to the presumption in favour of disclosure is likely to have the most significant impact in cases where competing public interests are finely balanced and therefore the outcome of the public interest test is not clear cut. In these situations, the presumption in favour of disclosure will be the deciding factor that tips the balance in favour of disclosing the information.

By contrast, the presumption in favour of disclosure is unlikely to make any substantial difference when – having decided that the exception is engaged – in carrying out the public interest test, you are satisfied that the information:

  • should be withheld because the public interest in maintaining the exception outweighs the public interest in disclosing the information; or
  • should be disclosed because the public interest in disclosure is equal to, or greater than, the public interest in favour of withholding it.

When relying on the exception, you should make clear to the applicant that you have taken it into account when making your decision.

When investigating a complaint, the Commissioner will look at how you applied the presumption in favour of disclosure, including asking you how you considered it if the outcome of the public interest test was not clear cut.

How do we deal with requests for mixed (both FOI and EIR) information?

Sometimes requests cover both environmental information and other, non-environmental, information. In most circumstances we would expect you to collate all the information and then, for any information you are considering refusing, to split it into information to be considered under FOIA and information to be considered under the EIR.

However, part of the reason for refusing requests under regulation 12(4)(b) of the EIR (and under sections 12 and 14(1) of FOIA) is to avoid incurring the burden of collating the information. Therefore, practical problems would arise if we insisted on the approach set out above for such cases.

Example

This was confirmed in the context of vexatious requests in the Upper Tribunal decision in Craven v The Information Commissioner and the Department of Energy and Climate Change [2012] UKUT442 (AAC).

“Furthermore, as Mr Cornwell argued, the whole purpose of both section 14(1) and regulation 12(4)(b) was to protect public authorities from exposure to disproportionate burden in handling information requests. That goal would be defeated if, as part of the very process of applying the relevant criteria the public authority had to identify which was environmental information and which was non-environmental information. I agree that this would be both an empty duty and a counter-productive enterprise. It follows in my view, that public authorities, the Commissioner and tribunals are perfectly entitled, where appropriate to address such issues [ie whether the information is environmental or not] on an “either /or basis”. (paragraph 23)

If you wish to refuse a “mixed” request as vexatious under section 14(1) of FOIA and manifestly unreasonable, other than solely because of cost or burden, under the EIR, then you can do so without first collating the information and splitting it into environmental and non-environmental information. You should simply issue a refusal notice that:

  • states that to the extent that the request is for non-environmental information, it is vexatious under section 14(1) of FOIA;
  • states that to the extent that the request is for environmental information, it is manifestly unreasonable under regulation 12(4)(b) of the EIR; and
  • provides an explanation of the public interest you have carried out under regulation 12(1)(b).

But if you wish to refuse a “mixed” request solely because of cost or burden as there are material differences between section 12 of FOIA and regulation 12(4)(b) of the EIR, the situation is a little more complex. For further information, please refer to our separate guidance entitled “Calculating costs where a request spans different access regimes”, which is available via our guidance index.

Can we neither confirm nor deny?

The EIR say you can only refuse to confirm or deny whether you hold information if to do so would adversely affect the interests in regulation 12(5)(a) (international relations, defence, national security or public safety) and would not be in the public interest. The EIR differ in this respect from FOIA, where most exemptions include NCND provisions.

This means that if you refuse a request under regulation 12(4)(b), you should still let the requester know whether or not you hold information falling within the scope of the request.

We do, however, recognise there will be a small proportion of cases where this simply isn’t practicable. If you aren’t sure whether information is held, and the costs of establishing this are in themselves clearly and obviously unreasonable, then we would not expect you to incur this expense as to do so would be counter to the purpose of the exception.  When providing the applicant with a refusal notice, you should make it clear that you are unable to even confirm that the requested information is held due to the cost.

What will the ICO expect from you?

If a complaint is made to the ICO, we will expect you to be able to support the application of regulation 12(4)(b) with evidence. If the exception has been engaged because the request is vexatious in the wider sense, you should read the relevant part of our section 14(1) guidance.

If you are applying the exception solely because of cost or burden, we would expect you to provide a detailed estimate of the tasks and costs involved in dealing with the request. Our guidance on section 12 will help you.

We do not expect you to collate all the requested information before refusing a request under regulation 12(4)(b) because this would defeat the object of claiming the exception. We do, however, expect you to be able to support your application of the exception, including the public interest test by reference to the subject matter and likely content of the information. On some occasions and particularly in borderline cases, we may ask you to provide a representative sample of information, so that we can properly assess the public interest in its disclosure. 

Other considerations

Our webpages include some advice for requesters on ‘how to access information from a public body’. They are aimed at the public and provide guidance on how to use EIR rights responsibly. If you are concerned that an individual’s requests may become manifestly unreasonable, you could try referring them to these webpages, and informing them that you are less likely to refuse future requests if framed in line with these guidelines.

Further reading

Training Video - Vexatious, repeated and manifestly unreasonable requests