The key question to consider is whether the value and purpose of the request justifies the distress, disruption or irritation that would be incurred by complying with it. You should judge this as objectively as possible. In other words, would a reasonable person think that the value and purpose of the request are enough to justify the impact on the authority?
This balancing exercise can be represented as follows:
Value of the requested information to the public
V
Evidence that dealing with request will cause disruption, irritation or distress
Context and history
The context and history of the request is often a major factor in determining whether the request is vexatious and may support the view that section 14(1) applies.
Equally, the context and history may weaken an argument that a request is vexatious. You need to take into account any oversights on the part of your own organisation which may have led to the request.
Sometimes the value or serious purpose of a request is enough to justify the impact on the public authority and sometimes it isn’t.
Example
In decision notice FS50900107 the ICO considered multiple requests made to Leicestershire Police (LP) about the policing of the Hunting Act 2004 and the conduct of officers from its Rural Crime Team.
The ICO acknowledged the seriousness of the complainant’s purpose and that there was a public interest in preventing cruelty being inflicted on foxes. However, the ICO went on to consider the wider context of the requests.
In total, nine requests were made over a relatively short period in 2019, some of which were themselves lengthy. The ICO accepted that the due to the volume of information requested, complying with them would take a significant amount time. As well as the burden this would impose, the ICO found that the requests:
“…, when viewed in conjunction with the robust and obsessive nature of her contacts with, and public statements about LP and individual officers amounted to an abuse of the FOIA process and could reasonably be characterised as having been vexatious.
… the Commissioner found that the value and purpose of the requests was not justified and a manifestly inappropriate or improper use of the formal FOIA procedure. As such these requests did not justify the burden of disruption, irritation and distress they placed on LP and its staff.” (paragraphs 39 and 40)
The ICO concluded that LP was entitled to refuse the request under section 14(1).
Example
In decision notice FS50430286 the requested information concerned the use of a charity account by a school academy. The requests were prompted by an audit report which had concluded that there had been a significant breakdown in appropriate standards of governance and accountability at the school.
In this case the ICO concluded that whilst the requests imposed a significant burden, this was outweighed by their value and serious purpose and therefore it would be wrong to find the requests vexatious.
In many cases where there is a history of contact between your organisation and the requester, it is easy to see a direct link between your previous dealings with them, their previous requests and the current request.
However in other cases, the extent to which either the burden their previous requests and associated correspondence have imposed, or any other evidence of vexatiousness these interactions demonstrate, may not be so obvious.
Where a requester has made a number of requests over the years, there are different scenarios to consider. The requests may have been on a wide range of very different issues. Alternatively, they may all have a common theme, and sometimes they may all stem from a specific concern or grievance of the requester.
Example
In Information Commissioner vs Devon County Council & Dransfield [2012] UKUT 440 (ACC), (28 January 2013) the request was, when considered in isolation, a perfectly reasonable one relating to the lighting protection system for a particular pedestrian bridge.
The council accepted there was a serious value to the request. But argued that when considered in the context of its previous dealings with the requester, the request was vexatious due to:
- burden;
- the potential for any response to generate further correspondence and requests; and
- the harassment caused by the accumulative effect of those requests.
In brief, the requester had made 11 requests (together with a significant amount of follow-up correspondence) over a five year period about four subjects. Three of which were on safety issues of lightning protection systems for built structures and the other, although of a different nature, was deemed to be still on the broad subject of health and safety.
The ICO upheld the council’s application of section 14(1). But, on appeal, the First-tier Tribunal found that the current request was not a continuation of previous dealings and therefore the current request was not “infected” by those earlier requests. It’s approach was that:
“there had to be ‘underlying grievance’, not simply a ‘similarity of subject matter’ in order for section 14 to bite.” (paragraph 58).
However when overturning the First-tier Tribunal’s decision, the Upper Tribunal found that it was not necessary for there to be a single underlying grievance linking the past requests with the current one, nor was it necessary for the requests to be on more than the same broad subject for them to be relevant to the consideration of vexatiousness.
In any event, in this particular case, the Upper Tribunal found that there was a common link between the requests (ie in broad terms, issues around health and safety).
However, there may be a limited extent to which a request made several years ago, on a completely unrelated subject, provides grounds for arguing that the combined burden of dealing with that and the current request makes the current one vexatious. Similarly, the extent to which the earlier request could be taken as evidence that responding to the current request would simply generate further correspondence may also be limited. You need to consider all the circumstances objectively. The closer the link between the previous and current requests, the stronger the evidence is likely to be.
In considering these issues, it is important not to fall into the trap of deeming the requester as vexatious rather than the request.