ICO’s power to refuse to decide cases is rarely used

The “filter” of section 50(2)(c) of the FOI Act allows the Information Commissioner to refuse to make a decision on frivolous or vexatious applications. It is rarely used. What an exciting intro to a blog post eh?

The First-tier Tribunal (Information Rights) (FTT), recently refused an application by Leeds City Council for an award of costs against a requester whose requests had been held by the Information Commissioner (IC), and the FTT itself, as vexatious under section 14(1) of the Freedom of Information Act 2000 (FOIA). Alistair Sloan has blogged about the decision itself, and I would commend his piece to readers, but an observation by the judge led me make an FOI request of my own.

After noting that

it must be possible, depending on the circumstances, for the maker of a request regarded by everyone else as vexatious, to defend his or her position on that point without automatically being treated under the costs Rules as behaving unreasonably

the judge adverted to section 50(2)(c) of FOIA. This permits to IC to not make a decision whether a public authority has complied with its FOIA obligations if the application for the decision is itself “frivolous or vexatious”. (This must be distinguished from a decision as to whether the original FOI request to the public authority was, pursuant to section 14(1), vexatious). It gives the IC an exception to the general requirement to make a formal decision on all cases where the applicant asks for one. The judge said

it is right to remember the protections which already exist for public authorities in the context of vexatious requests or hopeless appeals. Before a right of appeal is even a gleam in the Tribunal’s eye, there must be a complaint to the Information Commissioner (ICO). If the complaint to the ICO appears to be “frivolous or vexatious,” then there is no need for him even to make any decision appealable to the Tribunal. See Section 50(2) FIA

but then went on to note that he was

not aware of any published information about the extent to which the ICO makes use of this important provision.

 Ever keen to help our judiciary, I asked the IC, via What Do They Know. With admirable promptness they disclosed to me that, in the years for which records are retained (2007 onwards), the IC has declined to serve a decision notice because he considers the application vexatious or frivolous only 18 times (which breaks down into 16 frivolous and 2 vexatious).

Clearly, the IC considers this exceptional power to be just that – one that should be used only in exceptional cases, and maybe its use in 0.3% of cases accords with that. But in my research for this piece I did dig up again the IC’s submission to the Justice Committee for the latter’s 2012 post-legislative scrutiny of FOIA, and I noticed that there was this comment

For some reason Parliament made a distinction between this provision [section 50(2)(c)] and that in section 14(1) applying to requests to public authorities.

This strikes me as odd. It is quite clear that there is an important distinction between a vexatious request to a public authority and a frivolous or vexatious application for a decision. A requester could make a request to a public authority which was not in any way vexatious, yet choose to pursue the matter by applying for a decision in a way that made that application frivolous or vexatious. And it seems to me that this was what Judge Warren in the FTT was alluding to, and why it would be highly unusual – and potentially oppressive – to award costs against someone appealing a refusal of a vexatious request. Rule 10(1)(b) of the relevant tribunal rules does allow for the award of costs for unreasonably bringing (as opposed to conducting) the proceedings, but the availability of the filter of section 50(2)(c) FOIA should mean that it would be extraordinarily unusual for such an award ever to be made.

A final observation from me. The wording of section 50(2)(c) seems to make it clear that, as the IC would make no decision in a case where the application is frivolous or vexatious, then no possible right of appeal to the FTT could exist (and, therefore, judicial review would be the only legal remedy available). This would be in contrast to cases such as Sugar and (currently at case management stage in the Upper Tribunal) Cross v IC  where what is at issue is whether a decision by the IC that an organisation is not a public authority for the purposes of FOIA constitutes an appealable “decision”.

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

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