Small Council, Big Burden

“Parish Councils are the smallest unit in our system of elected government…In rural areas their jurisdiction typically extends to a single village or perhaps two or three, depending on size…Their budget generally runs to a few thousand pounds a year…They generally employ one part – time clerk to perform secretarial and administrative tasks… Their income derives from their precept – usually a small fraction of the Council tax. Most Parish Councils probably have little experience of FOIA requests for information.”  (EA/2013/0022)

When judgment was handed down earlier this year in the key case on vexatious requests under the Freedom of Information Act 2000 (FOIA), Wikely J said

It may be helpful to consider the question of whether a request is truly vexatious by considering four broad issues or themes – (1) the burden (on the public authority and its staff); (2) the motive (of the requester); (3) the value or serious purpose (of the request) and (4) any harassment or distress (of and to staff).

The first of these comes into important focus in a recent decision by the First-tier Tribunal (Information Rights) (FTT). In Harvey v ICO and Walberswick Parish Council (EA/2013/0022) the Council had received nearly five hundred FOIA requests (from various requesters) in a two-year period  (by way of contrast, county councils (which are hugely better-resourced) will perhaps have received about 2000-3000 over a similar period). It is not clear how many of these were made by the applicant, but the judgment says she was one of four residents who made the majority of them (which appear to stemmed from planning issues). At some point the Council had ill-advisedly purported to exclude requesters from making further requests. This in itself had only generated more requests. At one point all the parish councillors resigned as a result of the stress, tension and acrimony.

The request here was of a type often called a “meta-request” (a request about a previous request). It was for information about fifty previous requests refused on the grounds of cost. This meta-request was also refused, on the basis that, per section 14(1) of FOIA, it was vexatious. The FTT noted the dicta of Wikely J to the effect that

The purpose of section 14 must be to protect the resources (in the broadest sense of that word) of the public authority from being squandered on disproportionate use of FOIA.

and applied this to the fact that the public authority in this case was a small parish council

Parish councils are not equipped to handle a torrent of FOIA requests and, we suppose, very rarely do so. If WPC was failing to handle such matters efficiently, to bombard it with an unending further stream of requests and demands seems an odd way of helping it to improve its service […] the grossly excessive burden placed upon the resources of WPC by the flood of requests, of which this was one, is the decisive consideration in any assessment as to whether it was vexatious.

A hero emerges from the judgment (no doubt the four requesters do not see her in this light): Mrs Gomm, the parish clerk. Before she arrived “FOIA issues –and probably other council functions – were not efficiently handled” but, in far exceeding her hours and “left at one stage to her own devices and with no authorised source of income for her services” she wrote “admirably clear and courteous responses, which accurately addressed the issues of law involved”, in the face of “relentlessly agressive” correspondence.

(I wonder if Mrs Gomm might have been behind the rather odd outcome to the events, whereby the parties agreed the pragmatic step of disclosing the information just before the appeal hearing (this was not, said the FTT, an acknowledgment that the request had not been vexatious).)

The judgment shows that – although all public authorities have the same obligations under FOIA-  the smaller they are, the greater the burden, and that this can come into play on an analysis of whether a request has been vexatious. The judge ends with an odd but memorably alliterative observation:

Remorseless repetition of regressive requests is not a sensible way to improve performance

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Filed under Freedom of Information, Information Commissioner, Information Tribunal, vexatiousness

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