Line to take - LTT123 - Vexatious requests

• FOI/EIR: FOI
• Section/Regulation: s14, s12(4)(b)
• Issue: Vexatious requests
• Source: Information Tribunal, DN
• Details: Vaithilingam Ahilathirunayagam / London Metropolitan University (20 June 2007); Hossack/ DWP (18 December 2007); Welsh (16 April 2008); Gowers / London Borough of Camden (13 May 2008); Coggins (13 May 2008); Betts (19 May 2008); Carpenter / Stevenage Borough Council (17 November 2008)
• Related Lines to Take: n/a
• Related Documents: EA/2006/0070 (Ahilathirunayagam), EA/2007/0024 (Hossack), EA/2007/0088 (Welsh), EA/2007/0114 (Gowers), EA/2007/0130 (Coggins), EA/2007/0109 (Betts), EA/2008/0046 (Carpenter)
• Contact: HD
• Date: 09/03/2009
• Policy Reference: LTT123
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

The Commissioner will consider the context and history of the request as well as the strengths and weaknesses of both parties’ arguments in relation to some or all of the following five factors to reach a reasoned conclusion as to whether a reasonable public authority could refuse to comply with the request on the grounds that it is vexatious:

1) whether compliance would create a significant burden in terms of expense and distraction

2) whether the request is designed to cause disruption or annoyance

3) whether the request has the effect of harassing the public authority or its staff

4) whether the request can otherwise fairly be characterised as obsessive or manifestly unreasonable

5) whether the request has any serious purpose or value

Further Information

The external Awareness Guidance (No. 22) will be amended in line with this approach and should be published within the next 4 -6 weeks

Background

Section 14 of the Act states as follows:-

“14(1) Section 1 (1) does not oblige a public authority to comply with a request for information if the request is vexatious”.

The term is not defined further in the Act although the phrasing states that it is the request and not the requestor which must be vexatious. However if a particular applicant has made usage of the Act, then this should be taken into consideration as the Tribunal comments in Welsh & the Information Commissioner “...it is possible for a request to be valid if made by one person, but vexatious if made by another, valid if made to one person, vexatious if made to another...” (para 21) and similarly in Gowers & the London Borough of Camden at para 29 “...it is not only the request itself that must be examined, but also its context and history”.

The Commissioner’s Awareness Guidance No 22 previously set out to provide a working interpretation of the term via a two-stage test as follows:

“...the Commissioner’s general approach is that a request (which may be the latest in a series of requests) can be treated as vexatious where it would impose a significant burden on the public authority in terms of expense or distraction and meets at least one of the following criteria:

• it clearly does not have any serious purpose or value
• it is designed to cause disruption or annoyance
• it has the effect of harassing the public authority
• it can otherwise fairly be characterised as obsessive or manifestly unreasonable.... ”

A number of Tribunal judgments have commented that whilst the guidance is helpful, it is not binding and furthermore some express concern about the Commissioner’s approach:

• “...the definition of a vexatious request is still unsettled: we have not, for example, adopted the IC’s definition in his Guidance Note...” (para 33, Hossack & DWP)

• “...the Tribunal took into account the IC’s Guidance Number 22.. .it was concerned however that the two stage test set out in the guidance might be interpreted in too formulaic a fashion...” (para 20, Coggins & IC)

• “...we find the guidance interesting and helpful but we are cautious about elevating the two-stage test into a necessary sequence ... ” (para 27, Welsh)

• “...the Commissioner’s guidance ...is a helpful framework. We would urge caution, however, when considering whether requests are vexatious, in placing too much emphasis on whether requests impose a significant burden. - .the appropriate safeguard for that is section 12.... but if the Awareness Guidance is intended to indicate that a request can only be vexatious if it imposes a significant burden on the Council in terms of expense or distraction, in our view, that may be going too far” (para 70, Gowers)

It also seems the Tribunal is concerned that the Act should not be brought into disrepute by setting the threshold for vexatiousness too high. The Tribunal in Welsh said that:

“...there is a danger that setting the standard of vexatiousness too high will diminish public respect for the principles of free access to information held by public authorities enshrined in FOIA. There must be a limit to the number of times public authorities can be required to revisit issues that have already been authoritatively determined simply because some piece of as yet undisclosed information can be identified and requested....” (para 26).

The Commissioner’s Revised Approach

In light of these recent decisions, the Commissioner will modify his guidance to remove the two stage test and instead will consider the context and history of a request to assess whether the request would fall into some or all of the following categories although where the request falls under only one or two categories or where the arguments sit within a number of categories but are relatively weak, this will affect the weight to be given to the public authority’s claim that s14 is engaged:

1) it would create a significant burden in terms of expense and distraction,

2) it is designed to cause disruption or annoyance,

3) it has the effect of harassing the public authority,

4) it can otherwise fairly be characterised as obsessive or manifestly unreasonable, or

5) it clearly does not have any serious purpose or value

The Commissioner acknowledges that these distinctions are a little artificial and that a request may, for example, be both obsessive and create a significant burden or it may have the effect of harassing the public authority but have a serious purpose which lifts it from being vexatious. This idea was succinctly dealt with by the Tribunal in Coggins when it said "…a decision as to whether a request was vexatious within the meaning of s14 was a complex matter requiring the weighing in the balance of many different factors. The Tribunal was of the view that the determination whether a request was vexatious or not might not lend itself to an overly structured approach...”. However, whilst the Commissioner accepts that any analysis may cover a combination of these issues, the decision notice should identify which factors have been considered and how they have been weighted.

1. Significant burden in terms of expense and distraction

The Commissioner’s guidance at page 2 reads:

“...to determine whether a request imposes a significant burden, a public authority should consider whether complying with the request would cause it to divert a disproportionate amount of resources from its core business. However where the only concern ...is the burden on resources...it should consider whether it would be more appropriate to apply section 12...”

The Commissioner takes this opportunity to highlight that where the public authority’s only concerns relate to the costs of complying with the request, then they should cite s12 because to use such arguments to engage s14, the Commissioner would expect the public authority to show that complying with the request would cause a significant burden both in terms of costs and also diverting staff away from their core functions. This is supported by the Tribunal in Welsh who said that whether a request represents a significant burden is “...not just a question of financial resources but also includes issues of diversion and distraction from other work...”(para 27). The Tribunal in Gowers also said “...that in considering whether a request is vexatious, the number of previous requests and the demands they place on the public authority’s time and resources may be a relevant factor (para 70).

In the case of Coggins, the Tribunal found that a “significant administrative burden” (para 28) was caused by the complainant’s correspondence with the public authority which started in March 2005 and continued until the public authority cited s14 in May 2007. The complainant’s contact with the public authority ran to 20 FOIA requests, 73 letters and 17 postcards. The Tribunal said this contact was “...long, detailed and overlapping in the sense that he wrote on the same matters to a number of different officers, repeating requests before a response to the preceding one was received.... the Tribunal was of the view that dealing with this correspondence would have been a significant distraction from its core functions...” (para 28).

The Tribunal in Betts also suggested that even if it would not create a significant burden to respond to the material request, it may still be reasonable for a public authority to conclude that compliance would result in a significant burden if in answering that request, it was

“...extremely likely to lead to further correspondence, further requests and in all likelihood, complaints against individual officers...” (para 34). The Commissioner would however point out that this sort of approach would have to be supported by a history of the public authority responding to requests which the complainant utilises to generate further requests before a public authority could run this argument in support of claiming s14.

2. It is designed to cause disruption or annoyance

An example of a request which the Commissioner found was designed to cause disruption or annoyance is case reference FS50151851. Here, the Commissioner found the request to be vexatious when considering the volume and disparate nature of the correspondence coupled with the complainant actually writing: “I am insincere and my purpose is mischievous subversion” and “my own motivation is no more than to be disruptive and annoying”.

However the Tribunal in Betts did point out that the distress or annoyance must be caused by the process of complying with the request and not by the possible consequences of disclosure. At paragraph 28 they said - “...distress, annoyance, irritation or worry arising from the possible consequences of disclosure cannot turn an otherwise proper request into a vexatious one; indeed that would defeat the purpose of FOIA...”

3. It has the effect of harassing the public authority or its staff

In the case of Gowers, the complainant made allegations about the public authority’s lack of independence and incompetence and subsequently made a number of FOI requests of which 10 were considered by the Tribunal. Alongside the requests, the complainant also corresponded with the Council in which he made personal attacks upon the head of the Council’s Central Complaints Unit (CCU) and made enquiries into the identity of the wife of the CC U’s head. The Tribunal said:

“...what we do find is that the Appellant often expressed his dissatisfaction with the CCU in a way that would likely have been seen by any reasonable recipient as hostile, provocative and often personal...and amounting to a determined and relentless campaign to obtain any information which he could then use to discredit them.... we find that taken in their context, the requests are likely to have been very upsetting to the CCU’s staff and that they... are likely to have felt deliberately targeted and victimised...” (paras 53 & 54).

In the case of Ahilathirunayagam, the complainant had been in correspondence with the London Metropolitan University since 1992 as a result of him not being awarded a law degree. The complainant exhausted the University’s appeal procedure, complained to the Commissioner (Data Protection Registrar as he was then), instructed two firms of solicitors to correspond with the University, and unsuccessfully issued County Court proceedings. He also complained to his MP and to the Lord Chancellor’s Department. In February 2005, the complainant made an FOI request for information on the same issue. The University cited s14.

The Tribunal found the request to be vexatious by taking into account the following matters:

“…(ii) The fact that several of the questions purported to seek information which the Appellant clearly already possessed and the detailed content of which had previously been debated with the University

(iii) The tendentious language adopted in several of the questions demonstrating that the Appellant’s purpose was to argue and even harangue the University and certain of its employees and not really to obtain information that he did not already possess

(iv) The background history between the Appellant and the University.. .and the fact that the request, viewed as a whole, appeared to us to be intended simply to reopen issues which had been disputed several times before...” (para 32)

Also, as this request could be seen as obsessive, this case demonstrates the connected and overlapping nature of the various categories.

4. It can otherwise fairly be characterised as obsessive or manifestly unreasonable

The Commissioner accepts that at times there is a thin line between obsession and persistence and although each case is determined on its own facts, the Commissioner considers that an obsessive request can be most easily identified where a complainant continues with the request(s) despite being in possession of other independent evidence on the same issue. Further, the more independent evidence available, the more likely the request can be characterised as obsessive although a request may still be obsessive even without the presence of independent evidence.

For example, in the case of Welsh, the complainant attended his GP with a swollen lip. A month later, he saw a different doctor who diagnosed skin cancer. Mr Welsh believed the first doctor should have recognised the skin cancer and subsequently made a number of complaints although these were not upheld by the practice’s own internal investigation, the GMC, the Primary Care Trust or the Healthcare Commission. Nonetheless, the complainant addressed a 4 page letter to the GP’s practice, headed ‘FOIA 2000 & DPA 1998 & European Court of Human Rights” which contained one FOI request to know whether the first doctor had received training on face cancer recognition. The GP cited s14. The Tribunal said:

“...Mr Welsh simply ignores the results of 3 separate clinical investigations into his allegation. He advances no medical evidence of his own to challenge their findings that unwillingness to accept or engage with contrary evidence is an indicator of someone obsessed with his particular viewpoint, to the exclusion of any other...it is the persistence of Mr Welsh’s complaints, in the teeth of the findings of independent and external investigations, that makes this request, against that background and context, vexatious....” (paras 24 &25).

In the case of Coggins, the applicant was employed by Age Concern and in this capacity was helping an elderly woman with her care arrangements. The applicant believed that a fraud had been committed by Norfolk County Council in charging the woman for care she may not have received. The Council investigated and concluded that the care had been provided but had not been recorded and disciplined the relevant carer. The applicant also complained to the Commission for Social Care Inspection who did not uphold his complaint. Even the police said there was no evidence of dishonesty. The Tribunal said that the “...number of FOlA requests, the amount of correspondence and haranguing tone of that correspondence indicated that the Appellant was behaving in an obsessive manner...” (para 28).

5. It clearly does not have any serious purpose or value

The Tribunal in Coggins said at paragraph 20 - “...the Tribunal could imagine circumstances in which a request might be said to create a significant burden and indeed have the effect of harassing the public authority and yet, given its serious and proper purpose ought not to be deemed vexatious...”. Thus in this case, despite the request having the potential to cause a significant burden and be obsessive, the Tribunal considered whether the request had a serious purpose which may mean that despite the other findings it ought not be deemed vexatious.

The Tribunal said that the complainant was driven by a genuine desire to uncover a fraud which was not unreasonable particularly given that he had discovered that some of the visits had not been recorded by the carer. The Tribunal felt that this agenda “...amounted to a serious and proper purpose...”(para 22). However the Tribunal also said that “...there came a point when the Appellant should have let the matter drop...there had been three independent enquiries...in the Tribunal’s view it [the complainant] was not justified in the circumstances to persist with his campaign....” (para 25).

The Tribunal did not clarify whether at the time of the request the complainant no longer had a serious purpose or whether the obsessive and harassing nature of the request outweighed the serious purpose. However on either interpretation, the Commissioner considers this case a good example of how the Commissioner’s approach as outlined here can be applied.

In the case of Hossack, the DWP inadvertently revealed to the complainant’s wife that he was in receipt of benefits in breach of the Data Protection Act. The DWP initially suggested they were unable to identify the employee who committed the breach although they later were able to identify the individual. The DWP went onto accept responsibility for the breach, apologised and paid compensation but Mr Hossack twice complained to the Parliamentary Commissioner for Administration whose recommendations the DWP accepted and acted upon. However Mr Hossack continued to believe that the DWP’s initial misleading reply justified his campaign to prove a cover-up at the DWP. He accused the DWP staff of fraud and corruption and he publicised his allegations by setting up his own website and towing a trailer with posters detailing his allegations around the town.

The Tribunal said “... whatever cause or justification Mr Hossack may have had for his campaign initially, cannot begin to justify pursuing it to the lengths he has now gone to. To continue the campaign beyond the Ombudsman’s second report ...is completely unjustified and disproportionate” (para 26) and “...seen in context, we have no hesitation in declaring Mr Hossack’s request, vexatious” (para 27).

In Betts, the complainant’s car was damaged in 2004 by what he argued was an inadequately maintained Council road. He stated that the Council were responsible and as such should refund the £99.87 charge for the car repair. The Council stated that they had taken all reasonable care to ensure the road was not dangerous to traffic. By a number of letters and emails, the complainant sought inspection records, policies and assessments and the Council provided this information under the FOIA but when in January 2007 the complainant made a further request for information on health and safety policies and procedures, the Council claimed s14. The majority Tribunal found s14 was engaged and commented:

"...the Appellant’s refusal to let the matter drop and the dogged persistence with which he pursued his requests, despite disclosure by the Council and explanations as to its practices, indicated that the latter part of the request was part of an obsession. The Tribunal accepted that in early 2005 the Appellant could not be criticised for seeking the information that he did. Two years on however and the public interest in openness had been outweighed by the drain on resources and diversion from necessary public functions that were a result of his repeated requests...” (para 38).

Again, this case shows the links between the various categories as the request in Betts seems to be obsessive, to create a significant burden and lacking a serious purpose.

Serious purpose & series of requests

There will be cases where public authorities deal with a number of requests but decide that, for example, the seventh or twentieth request is vexatious albeit that it would have been a simple matter to comply with that request in isolation. In these circumstances, the Commissioner would look at the pattern of previous requests to consider whether the latest request goes to support either the presence or absence of a serious purpose.

For example, a complainant may have to submit requests in a successive fashion as it may only be by reading the contents of document A, that he/she is able to direct a subsequent request for document B and so on. For example, the Tribunal in Coggins said: “....one could imagine a requester seeking to uncover bias in a series of decisions covering many years and involving extensive detail, each of fairly minor importance in themselves but representing a major issue when taken together. This might indeed be experienced as harassing but given the issue behind the requests, a warranted course of action ...“ (para 20).

However where a series of requests have been made, this may go to demonstrate the absence of any serious purpose, for example, where a complainant uses different phraseology in a number of requests but is essentially asking for the same or substantially similar information as has already been provided.

Conclusion

There is no definition of a vexatious request for FOIA purposes and the Tribunal have therefore concluded that Parliament intended it to have its ordinary meaning i.e. likely to cause distress or irritation, literally to vex a person to whom it is directed. The Tribunal has however commented that it is not helpful to look for a definition within other legal contexts because:

• “...the consequences of finding that a request for information is vexatious are much less serious than a finding of vexatious conduct in these other contexts, and therefore the threshold for a request to be found vexatious need not be set too high...” (para 11, Hossack)

• “...the concept of vexatious litigants from other legal contexts is not an appropriate analogy to use because what s14(1) does make clear is that it is concerned with whether the request is vexatious, not whether the applicant is vexatious...”(para 25, Gowers)

Further, the Tribunal in Gowers said that the test is an objective one, i.e. the threshold is whether a reasonable public authority would find the request vexatious. (para 27).

Therefore in determining whether a request is vexatious or not, the Commissioner will consider the context and history of the request to reach a reasoned conclusion based on the strength or weakness of both parties’ arguments in relation to some or all of the above five factors as to whether a reasonable public authority could refuse to comply with the request on the grounds that it is vexatious.

Environmental Information Regulations

Regulation 12 (4) states as follows:

“(4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that-

(a) …

(b) the request for information is manifestly unreasonable.”

In the case of Stephen Carpenter & Stevenage Borough Council, the issue arose as to whether Regulation 12(4)(b) could be applied in the same way as s14 was applied under the FOIA. In particular, the complainant argued that decisions in relation to vexatious requests had “no bearing” on the meaning of the words “manifestly unreasonable” and as such requested that they should not be referenced by the parties or the Tribunal. However, the Tribunal said at para 8:

“...The Tribunal declined this request on the basis that those decisions might well have a bearing on the matter on which the Tribunal had to decide”

In reaching its conclusion, the Tribunal also said it “...reminds itself of the principles that have emerged in relation to section 14 FOIA...” (para 51) and then went onto apply those principles to the circumstances of the case to conclude that the requests were manifestly unreasonable. (Please see the IT summary for full details of this case)

Thus, the Commissioner accepts that the principles to be considered when looking at s14 cases can also be applied to cases involving Regulation 12(4)(b) although the following points should be borne in mind:

• The term ‘manifestly unreasonable’ is a wider concept than the term ‘vexatious’ under the Act and thus Regulation 12(4)(b) may also relate to cases involving costs issues.
• Also, Article 4 of the Directive upon which the Regulations are based states that the exceptions should be interpreted in a “restrictive way” although this is likely to have more application to cases where Regulation 12(4)(b) has been argued in relation to costs.
• There is a presumption in favour of disclosure at Regulation 12(2).
• Regulation 12(4)(b) is an exception and thus is subject to the public interest test (Regulation 12(1)(b)).
• Furthermore, the background and pattern of any requests also made under FOIA can be taken into consideration under Regulation 12(4)(b);
• Finally, each case is of course determined on its own circumstances.