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Freedom of Information - How to Recognise a Vexatious Request

on Thursday, 18 February 2016.

Higher education institutions have learnt through hard experience the importance of getting Freedom of Information requests right.

Some requests are reasonable, some are tedious and difficult, and some engage with the exemptions. However some requests can be vexatious.

You do not have to comply with a vexatious request, but it can often be difficult to identify a request as vexatious.

In this article we consider how to recognise a vexatious request and what you should do if you get one.

What is a vexatious request?

In the decision of Dransfield v Information Commissioner, the Court of Appeal ruled that, when deciding whether a request is vexatious, an authority must consider all the relevant circumstances, including any history of requests from the requester, to reach a balanced decision.

Considering the high standard of vexatiousness, the court said:

'emphasis should be on an objective standard, and the starting point is that vexatiousness primarily involves making a request which has no reasonable foundation, that is, no reasonable foundation for thinking that the information sought would be of value to the requester, or to the public or any section of the public'

The case was referred to the Court of Appeal by the Upper Tribunal. The tribunal had identified four issues of vexatiousness, which do not appear to have been disapproved by the court. They were:

  • burden - the number, breadth, pattern and behaviour of previous requests
  • motive - the underlying rationale or justification for the request, and that a request might start as reasonable but lead to further requests which become increasingly distant from the requester's starting point
  • value of the request - which may be bound to the requester's motive
  • obsessive conduct - that harasses or distresses staff or uses intemperate language or which makes unsubstantiated allegations or contains abuse

However, the court has said that even a vengeful request could be non-vexatious if the information that would be disclosed is important, ought to be publicly available and promotes the FoI Act.

What should you do?

If you decide that a request is vexatious, then this will need to be properly evidenced. Our experience is that refusing the vexatious request almost inevitably results in a complaint to the Information Commissioner's Office (ICO).

The ICO will need to be persuaded that the decision was well thought through and evidenced. It may therefore be sensible to keep an evidence log if there is a series of requests or behaviours and you are worried that a 'vexatious' decision may be required. A single request can also be refused where it is fundamentally objectionable, for example if it contains threats against employees, or is fundamentally racist.

A vexatious request is just that. It is not a finding that a particular individual is vexatious and that any other request from them can automatically be refused. It is about the particular request. However, history and context will often be highly relevant.

Indicators identified by the ICO are useful, but must be taken into account in a balanced and thoughtful fashion. The indicators include:

  • abusive or aggressive language
  • burden on the authority
  • personal grudges
  • unreasonable persistence
  • unfounded accusations
  • intransigence
  • frequent or overlapping requests
  • deliberate intention to cause annoyance
  • scattergun approach
  • disproportionate effort
  • no obvious intent to obtain information
  • futile requests
  • frivolous requests

These are indicators only and not a checklist. A judgement is required, which must take into proper account the wider public interest.

On occasion you might want to take a conciliatory approach, or seek to resolve the dispute before playing the 'vexatious' card. Similarly, there may be occasions when a vexatious decision needs to be made early on.

However, a vexatious decision should not be limited to the most extreme cases. We have found the ICO to be sympathetic when a decision is well thought through and backed up with cogent evidence.

The volume of FoI requests will increase and our advice is consistent - ensure that you have the right policies, that staff are trained and that documents are not created which might cause embarrassment or reputational loss.

So, before things become too difficult or challenging for you, your colleagues or your institution, it may make sense to seek support and help.

If you need help on reaching a decision, or any other freedom of information or data protection matter, please contact Andrew Gallie on 0117 314 5623.

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