Gathering evidence
When you are dealing with a series of requests and developing pattern of behaviour, you may arrive at a tipping point. This is when you decide that, whilst it was appropriate to deal with a requester’s previous requests, the continuation of that behaviour has made the latest request vexatious.
If you see this tipping point approaching, it is helpful to maintain an ‘evidence log’ to record any relevant correspondence and behaviour. We expect you to be able to produce documentary evidence in support of your decision, if the requester complains to the ICO.
The evidence log should be proportionate to the nature of the request. It should set out the key milestones in the chronology and cross-reference existing information.
The cut off point for evidence that a request is vexatious
You may take into account any evidence you have about the events and correspondence which proceeded or led-up to the request being made.
You have a set time limit (normally 20 working days) in which you must respond to a request. As long as you keep to this time limit, then you may also take into account anything that happens within the period in which you are dealing with the request (eg if the requester sends in further requests).
However, you cannot take into account anything that happens after this cut-off point. This means that if you breach FOIA by taking longer than 20 working days to deal with a request, or if you make a late claim of section 14(1) after a complaint has been made to the ICO, then you need to disregard anything that happened after the time limit for responding had expired.
How does the ICO handle complaints?
Where the ICO receives a complaint, it is your responsibility to demonstrate that you have applied the provisions of FOIA correctly and the request is vexatious.
When building a case to support your decision, you must bear in mind that we will be looking for evidence that the request would have an unjustified or disproportionate effect on your organisation.
You should therefore be able to detail the detrimental impact of compliance and also explain why this would be unjustified or disproportionate in relation to the request itself and its inherent value or purpose.
Where you believe that the context or history strengthens the argument that the request is vexatious, then we also expect you to provide any relevant documentary evidence or background information to support this claim. You need to make sure that the evidence provides sufficient detail to contextualise the history of the request.
For example, it is not sufficient to simply count the number of associated pieces of correspondence and complaints made by the requester. This does not, in itself, reveal the nature of those interactions, or whether the issues raised were adequately dealt with by your organisation.
Example
In CP vs The Information Commissioner [2016] UKUT 0427 (ACC) 26 September 2016 the Upper Tribunal stated that:
“The high hurdle for satisfaction of the section 14(1) test requires an appropriately detailed evidential foundation before the tribunal which addresses the course of dealings between the requester and the public authority. This need not be compendious or exhaustive but must explain those dealings in sufficient detail and put them into context.” (para 2)
In support of the application of section 14(1), evidence had been provided about the requester’s past dealings with the public authority which included a number of complaints lodged against the public authority relating to the issue at the heart of the request. This included a number of complaints made to the ICO about requests he had submitted to the public authority on that subject. The Upper Tribunal was critical of this evidence as it did not reveal the outcome of those complaints. If their complaints had been upheld, they could be evidence that the requester was pursuing a legitimate matter of public concern rather than demonstrating vexatiousness.
Similarly, if a requester has made multiple requests, it is conceivable that the requester found it necessary to do so because you had failed to respond properly, or at all, to some of those requests.
If you provide a sample of the vexatious material as supporting evidence, then you should ensure that this sample is representative.