Vexatious

Vexatious and Repeated Requests

Relevant legislation sections:

• Section 14(1) or (2) of the Freedom of Information Act 2000 for vexatious or repeated requests
• Section 14(1) or (2) of the Freedom of Information (Scotland) Act 2002 for vexatious or repeated requests

http://www.itspublicknowledge.info/ScottishPublicAuthorities/RespondingtoaRequest/InformationResponseStep5.asp and http://www.itspublicknowledge.info/Law/FOISA-EIRsGuidance/Section14/Section14Overview.asp

• Environmental Information Regulations have provisions for refusing to answer "manifestly unreasonable" requests which are equivalent.
• In Scotland these are regulations 10(4)(b) & (c): Scottish public authorities may refuse requests for environmental information that are manifestly unreasonable, while regulation 10(4)(c) justifies refusal where requests are formulated in too general a manner.
• In the rest of the UK, this is regulation 12(4)(b) - "[where] the request for information is manifestly unreasonable;" http://www.defra.gov.uk/corporate/opengov/eir/guidance/full-guidance/pdf/guidance-7.pdf
• Regulation 12(4)(b) of the EIR is also used as an exemption for the that would usually exceed the approved limits in terms of cost of information retrieval.

Vexatious, repeated (FOIA) or unreasonable requests (EIR) for English / Welsh / N.Ireland authorities

• ICO guidance on vexatious requests "Awareness Guidance 22": http://www.ico.gov.uk/upload/documents/library/freedom_of_information/detailed_specialist_guides/awareness_guidance_22_vexatious_and_repeated_requests_final.pdf
• 05/12: ICO have released notes on the updated new AG22: http://www.ico.gov.uk/upload/documents/pressreleases/2008/vexatious_request_guidance_051208.pdf

• The 5 following points from Awareness Guidance 22 should be used by authorities in determining if a request is to be treated as vexatious under 14(1). You should try to avoid asking questions that could be considered as falling under these categories.

- Could the request fairly be seen as obsessive?

- Is the request harassing the authority or causing distress to staff?

- Would complying with the request impose a significant burden?

- Is the request designed to cause disruption or annoyance?

- Does the request lack any serious purpose or value?

• MoJ guidance: http://www.justice.gov.uk/guidance/foi-procedural-vexatious.htm

• Relevant Information Commissioner decision notices:

• http://www.ico.gov.uk/upload/documents/decisionnotices/2006/decision_notice_fs50078594.pdf - the most important case, which lead to the production of Awareness Guidance 22 (listed above)
• http://www.ico.gov.uk/upload/documents/decisionnotices/2007/fs_50117259.pdf - making "repeated" requests (which can be considered as vexatious) to more than one public authority cannot be aggregated to be considered as vexatious under 14(2)
• Most appeals about refusals to requests as being vexatious to the ICO are not upheld... The ICO uses Awareness Guidance 22 as its main guide.
• No relevant decision notices for EIR

• Relevant Information Tribunal cases: all appeals on Section 14 have been dismissed, including this one under EIR:

* http://www.informationtribunal.gov.uk/DBFiles/Decision/i271/Carpenter%20v%20IC%20(EA-2008-0046)%20Decision%2017-11-08.pdf

Vexatious, repeated (FOISA) or unreasonable requests (EIRS) in Scotland

• Relevant Scottish Information Commissioner Decisions:

• 062/2005 Macroberts and the Scottish Executive (29/11/2005) http://www.itspublicknowledge.info/applicationsanddecisions/Decisions/2005/200501348.asp
• 063/2005 Macroberts and Caledonian MacBrayne Limited (29/11/05) http://www.itspublicknowledge.info/applicationsanddecisions/Decisions/2005/200501613.asp
• These 2 cases form the main references for the SIC's position on vexatious or repeated requests. Most of the other appeals to the SIC against Section 14 have been upheld. For example - see the following decision http://www.itspublicknowledge.info/applicationsanddecisions/Decisions/2007/200601455.asp - text follows
• The Scottish Ministers Code of Practice on the Discharge of Functions by Public Authorities under FOISA (the Section 60 Code) states that the factors that might be taken into consideration in determining whether a request is vexatious include:

• Whether the request has already been rejected on appeal to the Commissioner and the applicant knows this;
• Whether there has been unreasonable refusal or failure to identify sufficiently clearly the information required;
• Whether there has been unreasonable refusal or failure to accept documented evidence that the information is not held;
• Whether the request can be shown to be clearly intended to disrupt the authority’s work rather than for the purpose of obtaining information.

• "In considering what is manifestly unreasonable or manifestly disproportionate (which may be relevant considerations in determining whether a request is vexatious), it will sometimes be necessary to consider the effect of dealing with the request on a public authority. I have always made it clear that public authorities wishing to rely on the provision contained in section 14(1) must be able to show that the request – and not the person making the request – is vexatious. Even if an applicant does not intend a request to be vexatious, however, it is possible that dealing with that request will impose a burden on a public authority that by any objective standard would be considered manifestly unreasonable or manifestly disproportionate. The nature and effect of the request, rather than the intentions of the applicant, must therefore be taken into account in appropriate cases."

Section 14 appeal stats for ICO & IT

• Appeal to the Information Commissioner was succesful in the following cases. Links to relevant appeals at the Information Tribunal are provided with the results. Items are listed as V or R for Vexatious s.14(1) or Repeated s.14(2).

• V: FS50086598 - EA/2006/0010 no effect on IC decision, didn't consider s14
• V: FS50075947
• R: FS50089367
• V+R: FS50087366
• R: FS50117259
• V+R: FS50109184
• V+R: FS50135471
• V: FS50120313
• V+R: FS50144286
• V: FS50147950 - EA/2007/0076 no effect on IC decision, didn't consider s14
• V: FS50112042

• Appeal to the Information Commissioner was unsuccesful in the following cases. Links to relevant appeals at the Information Tribunal are provided with the results. Items are listed as V or R for Vexatious s.14(1) or Repeated s.14(2).

• V: FS50078594
• V: FS50069395
• V: FS50099691
• V: FS50099755
• V: FS50085398
• V: FS50130467
• R: FS50102437 - EA/2006/0088 - s14 appeal succesful
• V: FS50105213
• V: FS50110741
• V: FS50086298 - EA/2007/0050 - no effect on IC decision - didn't cover s14
• V: FS50125496 - EA/2007/0024 - s14 appeal failed
• R: FS50134560
• V: FS50090632
• V: FS50170171 - EA/2007/0088 - s14 appeal failed
• V: FS50170245
• V: FS50154484
• V: FS50154968 - EA/2007/0109 - s14 appeal failed
• V: FS50122016 - EA/2007/0114 - s14 appeal failed
• V: FS50169994 - EA/2007/0130 - s14 appeal failed
• V: FS50151851
• V: FS50163359
• V: FS50180689
• V: FS50157445
• V+R: FS50160725

Information correct as at 6 April 2009, source from [1] and [2]