Line to take - LTT120 - Advice and assistance - erroneous reliance on s14 or derogation

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  • FOI/EIR: FOI
  • Section/Regulation: s14, s16
  • Issue: Advice and assistance - erroneous reliance on s14 or derogation
  • Source: Information Tribunal
  • Details: Billings (6 February 2008); Fitzsimmons (3 December 2008)
  • Related Lines to Take: LTT87, LTT88, LTT89, LTT90
  • Related Documents: EA/2007/0076 (Billings), EA/2008/0043 (Fitzsimmons)
  • Contact: HD/GF
  • Date: 23/02/2008
  • Policy Reference: LTT120
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT


Line to take

Where a public authority argues that a request is vexatious but the Commissioner concludes that s14 is not engaged, the Commissioner may find a breach of s16(1) where the public authority would have been required to consider providing advice and assistance but failed to do so because they were erroneously claiming the request was vexatious.

Similarly where the Commissioner finds that derogation does not apply to a request, the Commissioner may find a breach of s16(1) if the public authority failed to provide advice and assistance in circumstances where they would otherwise have been required to do so.

For completeness, where the Commissioner finds s14 is engaged, or that derogation does apply, then there will be no breach of s16(1) if the public authority does not offer any advice and assistance in accordance with the s45 Code of Practice.

Further Information

The FOIA provides:

“14. — (1) Section 1(1) does not oblige a public authority to comply with a request for information if the request is vexatious...
16. — (1) ‘It shall be the duty of a public authority to provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to persons who propose to make, or have made, requests for information to it
16. — (2) Any public authority which in relation to the provision of advice and assistance in any case, conforms with the code of practice under section 45 is to be taken to comply with the duty imposed by subsection (1) in relation to that case”

Paragraph 15 (regarding advice relating to fees) of the Code of Practice states: “...an authority is not expected to provide advice and assistance to applicants whose requests are vexatious within the meaning of s14 of the Act...

In the case of Billings, the complainant requested details of the dates of any communications between the public authority (the Office of the Parliamentary & Health Service Ombudsman (‘OPHSO’)) and the Deputy Prime Minister for a three year period. The public authority cited s14 on the grounds that it would constitute a significant burden, and as the request lacked any serious purpose or value. The public authority also said that as the complainant was dissatisfied with the outcome of the OPHSO’s investigations into his complaint, his submission of a number of information requests showed he was being obsessive/manifestly unreasonable. The Commissioner was not persuaded by any of the above arguments and found that s14 was not engaged but in relation to s16, paragraphs 34 & 35 of the DN state:

...the PHSO made no mention to the requester of how his request could be refined so that it would be less burdensome. However, although this would ordinarily have been expected practice under s16, the PHSO ‘s application of s14 disapplied this duty.
Whilst the PHSO did not breach s16 in this case, the Commissioner is of the view that s16 does not prevent the offering of advice and assistance in cases where such a process would facilitate access to information...

The complainant appealed to the Tribunal on the grounds that the DN did not ‘fairly and accurately reflect the facts of the case’ despite the DN finding in his favour and despite him receiving some information under the terms of a refined request. Accordingly, the Tribunal dismissed all of the appellant’s grounds of appeal except the last one which related to the provision of advice and assistance in relation to the original request.

The Tribunal summarised the Commissioner’s position as follows at paragraph 13:

...although the Commissioner decided that the PHSO was incorrect in (finding the request to be vexatious], the PHSO’s view could not in all the circumstances be said to have been perverse or wholly unreasonable. As such, he says, the PHSO was acting in accordance with the Code of Practice in not providing assistance...'”

The Tribunal said it hesitated to adopt the Commissioner’s reasoning. At paragraph 14, it said that whilst a complainant could be denied the right to advice and assistance under s16 if the public authority initially and erroneously found the request to be vexatious, the obligation under s16 is qualified by the words ‘so far as it would be reasonable to expect the authority to do so’.

The Tribunal said that arguably these words could just place a limit on the extent of the assistance that must be provided but that they thought the phrase could also be interpreted as indicating that the obligation was not triggered at all in circumstances where the public authority reached a rational conclusion that the request was vexatious. Indeed they said this latter interpretation represented an appropriate construction of the language and reflected the common sense approach of the Code of Practice:

its effect is that if a public authority comes to the reasonable conclusion that a request is vexatious, it should not be open to criticism (if the Information Commissioner or Tribunal subsequently disagrees with its assessment) for having failed to engage in further communications with the person making the request. This does not mean that public authorities may adopt a cavalier attitude to information requests: seeking to avoid their obligations by perversely or unreasonably characterising any inconvenient request as vexatious. The protection of s16 will not be available to a public authority which has been unreasonable in deciding to treat the request as vexatious.” (para 14).

The Commissioner’s Approach in relation to s14

The Commissioner recognises that just because requests may initially be considered vexatious, this does not necessarily prevent the offering of advice and assistance (for example, in the Billings case, the public authority initially claimed s14 but were swiftly able to provide the information under the terms of the revised request following dialogue as part of the Commissioner’s investigation).

Therefore, where a public authority argues that a request is vexatious but the Commissioner concludes that s14 is not engaged, the Commissioner may find a breach of s16(1) if the public authority failed to provide advice and assistance because of their erroneous reliance on s14 in circumstances where they would otherwise be required to do so (see LTT87 for the ‘triggers’ to providing advice and assistance).

Derogation

In the case of Fitzsimmons v Information Commissioner and BBC, the applicant had requested information about the expense statements for Andrew Marr and Natasha Kaplinsky. The BBC refused the request on the basis that the information fell within the derogation to FOIA. The Commissioner had found that the derogation did not apply in this case but upheld the BBC’s (subsequent) reliance on section 12 FOIA. In the decision notice, the Commissioner had ‘suggested’ that the BBC should contact Mr Fitzsimmons so that with a view to him refining his request in order with the duty under s16.

The Tribunal found that the BBC at the time of the request genuinely believed derogation applied (paragraph 50); and that to say there was a breach of s16 in such circumstances would require the BBC to treat all requests under FOIA and offer advice and assistance whether derogation applied or not. However, the Commissioner disputes this view. His duty is to consider whether, at the time of the request, the public authority had correctly applied FOIA; for the Tribunal to say that because the BBC considered it was not covered by FOIA in this case, the BBC cannot be considered to have not complied with section 16 FOIA, even though FOIA did apply at the time of the request, is inconsistent with this duty

Therefore, where the Commissioner finds that derogation does not apply to a request, the Commissioner may find a breach of s16(1) if the public authority failed to provide advice and assistance in circumstances where they would otherwise be required to do so (see LTT87 for the ‘triggers’ to providing advice and assistance).