Back in August of this year I blogged about an interesting decision by the First-tier Tribunal (Information Rights) (FTT) which approached the subject of “vexatiousness” (section 14(1) of the Freedom of Information Act 2000 (FOIA) by observing that what might be an excessively burdensome to a small public authority (such as a rural parish council) might not be so to a large public authority.
The public authority in question was Walberswick Parish Council, and, since that decision, there have been two others, meaning that Walberswick now has more experience in the FTT than most county councils and many other huge public authorities.
All three cases relate to refusals to disclose information on the grounds that the requests were vexatious, and the most recent – McCarthy v IC & Walberswick Parish Council – is no different: and, indeed, they all follow the line of authority on vexatiousness laid down by the Upper Tribunal earlier this year in ICO v Devon County Council and Dransfield GIA/3037/2011. What is noteworthy, however, is the disapproval with which the judge clearly views the continuing vexatious requests being made to Walberswick:
WPC is a parish council, not a department of state. The limits on its resources were well-known to the Appellant and to everybody else involved in this unhappy saga…It is plain that FOIA requests, both those made by the Appellant and the others of which he was concurrently aware, reduced WPC to paralysis…Furthermore, it was perfectly plain to any sensible individual and without doubt to one of the Appellant`s sophistication and social awareness that such pressure would drive elected and ultimately appointed councillors from office, as well as their clerk, who was at the centre of the battle.
Indeed, so concerned was the FTT that, very unusually, it put future requesters on warning on potential costs
WPC will not function as a democratically elected body until this bombardment by FOIA requests ceases. That may well mean that, as here, intrinsically reasonable requests for information are treated as vexatious if part and parcel of a sustained assault motivated by a desire to disrupt. Crippling a parish council by subjecting it to ceaseless interrogation is not a sensible way to improve its service to local residents nor to fulfil its duties under FOIA…it is highly unlikely that any future appeal from this parish council will be decided on different principles or without regard to the outcome of this and earlier appeals relating to Walberswick. Unsuccessful appeals by campaigning requesters may well attract the unusual sanction of orders for costs
(In passing, I would query whether this statement is potentially prejudicial to future cases in the FTT, and could actually deter people from making legitimate requests. In fact, it seems to suggest that any FOIA request to Walberswick could be considered to be prima facie vexatious. In fairness to the FTT though, this is merely the outcome of the “sustained assault” by the current campaigners).
Awards of costs in the FTT are very rare (I can only recall three cases). To put as-yet-unknown requesters, who haven’t yet made requests, on notice is a measure of how seriously the FTT view the harm caused by a campaign such as that experienced by Walberswick. In administrative law we already have the concept of Wednesbury Unreasonableness – one wonders if, in this particular branch of administrative law, we should start using Walberswick Vexatiousness as a term of art?