There is no index of character so sure as the voice – Benjamin Disraeli, Tancred
In October 2013 Surrey Police disclosed, in response to a request made under the Freedom of Information Act 2000 (FOIA) the transcripts of police interviews (under caution) of Jimmy Savile. The Information Commissioner’s Office ICO) has now ruled on a related request, which was for the actual audio recordings of the same interview, and, rather surprisingly, the ICO has agreed with the Police that they did not have to comply with the request, on the grounds that it was vexatious.
Until relatively recently it was difficult to rely on section 14(1) of FOIA (“a public authority [need not] comply with a request for information if the request is vexatious”) simply because the costs burden of dealing with it was too great. The ICO’s guidance did advise that one of the factors to bear in mind when considering whether a request was vexatious was “Would complying with the request impose a significant burden in terms of expense and distraction?”, but in general, for a public authority to refuse to comply with a FOIA request because of the costs, it had to be able to claim that the cost of compliance exceeded the appropriate limit (section 12 FOIA). However, a decision of the First-tier Tribunal (FTT) in 2012 appeared to shift the ground somewhat. Although FTTs’ decisions are not precedent, it was notable that a public authority (the IPCC in this case) was said to be entitled to rely on section 14(1) on the basis that
A request may be so grossly oppressive in terms of the resources and time demanded by compliance as to be vexatious, regardless of the intentions or bona fides of the requester. If so, it is not prevented from being vexatious just because the authority could have relied instead on s.12
As the always-excellent Pantopticon blog said at the time
This will be welcomed by those who find themselves unable to rely on section 12 due to the restricted list of activities which can be taken into account for cost purposes
but the context in that particular case meant that, in fact, the intentions and bona fides of the requester were relevant
The present requests were, in our opinion, not just burdensome and harassing but furthermore wholly unreasonable and of very uncertain purpose and dubious value…We are by no means convinced of [the requester’s] good faith in making it
In the leading case on section 14(1) – IC v Dransfield  UKUT 440 (AAC) – Wikeley J said that it was helpful, when considering whether a FOIA request is vexatious, to consider 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)
but that ultimately, the test amounts to
is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA?
The ICO’s guidance, amended in light of Dransfield reframes this slightly and says that the
the key question a public authority must ask itself is whether the request is likely to cause a disproportionate or unjustified level of disruption, irritation or distress
The ICO draws on this guidance in the Savile decision, but, notably, appears to give considerable credence to the police’s evidence regarding the disruption – the burden – that redacting the audio of the interviews would cause, but does not appear to have interrogated this assertion in any depth. Moreover, the ICO notes its lack of expert knowledge on the subject of redaction, but nothing (other than, presumably, limited resources) prevented it from consulting an expert. Given that this appears to have been the primary evidence for the finding of vexatiousness (the ICO accepted that the requester’s motives were not intended to cause disruption or harassment) and given that the ICO accepted that there was a “qualitative difference” between the written transcripts and the audio (“The speed, volume, expressiveness and intonation of the actual speech may be considered to shed more light on how Savile responded to what was put to him in the interview”) it is difficult to see how the ICO decided that request could have been vexatious, rather than just of a level of annyoance and disruption it accepts a public authority must absorb. The request, using Wikeley J’s formulation, was not improper, it was not inappropriate – and was it really, therefore, a “manifestly unjustified use of FOIA”?
One hopes the bar of vexatiousness has not been lowered too far.