Non-compliant FOI compliance?

What does it mean to “comply” with an FOI request? This would appear to be a rather arid question, but when the provisions of section 14(2) of the Freedom of Information Act 2000 (FOIA) come into play, it is not perhaps as unambiguous as one might think.

Section 14(2) provides that

Where a public authority has previously complied with a request for information which was made by any person, it is not obliged to comply with a subsequent identical or substantially similar request from that person unless a reasonable interval has elapsed between compliance with the previous request and the making of the current request [emphasis added]

I confess that, until recently, as both a practitioner and an observer, I had never given this too much thought: surely a public authority complies with a request by complying with its general obligations under FOIA? Namely, confirming whether requested information is held, and, where it is, either communicating it to the requester or providing a refusal notice, while at the same time providing appropriate advice and assistance.

However, it appears (and apologies to anyone who’s known this for ages – I didn’t) that the Information Commissioner’s Office (ICO) take a different view on section 14(2). Their approach, reflected in guidance, is that for the purposes of section 14(2) at least, a public authority has only previously complied with a request when it has either disclosed the information, or confirmed that it is not held:

A public authority may only apply Section 14(2) where it has either;
– previously provided the same requester with the information in response to an earlier FOIA request; or
– previously confirmed the information is not held in response to an earlier FOIA request from the same requester.
If neither of these conditions applies then the public authority must deal with the request in the normal manner.

So, if the authority has previously refused to disclose information, on the valid basis of the application of an exemption or exemptions, it cannot refuse to deal with a subsequent identical request, and it must (one assumes, and unless circumstances have changed) issue a fresh, identical, refusal notice.

This approach is also reflected in a recent decision notice relating to a request to the Department for Work and Pensions (DWP) for the names of charities and companies who have given placements to Mandatory Work Activity or Help to Work participants. DWP had replied to a previous almost identical request, refusing to disclose the information on the basis of the exemptions at section 29(1)(a), 29(1)(b), 36(2)(c) and 43(2) of FOIA. This time, they refused to reply to the request citing section section 14(2). Not on, said ICO:

the DWP can only rely on section 14(2) if, inter alia, it had previously complied with the same or substantially similar request by supplying the requested information to the complainant or confirming it was not held

As the previous request had resulted in the applications of exemptions to refuse disclosure, section 14(2) was not engaged. This was despite the fact that – as DWP pointed out – a previous ICO decision notice had actually said that its position was that

the term ‘previously complied with a request for information’ refers to whether an authority has responded to the previous requests by either providing information or by issuing a refusal notice (emphasis added)

ICO explained this discrepancy by saying first, they were not bound by previous decisions, and second, that the earlier decision was “erroneous” and contrary to their own guidance.

I suspect the ICO are drawing a distinction between the concepts of “complying with a request” (i.e. fulfilling it) and “complying with FOIA obligations”. and I’m not completely sure I’m in disagreement with the ICO’s settled position. But I think I am, if only because, followed to its logical extension, we would be saying that a public authority has not “complied” with any request for information, if it has validly applied exemptions and refused to disclose the information. This lacks logic: it will be interesting to see if DWP appeal.

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with..

22 Comments

Filed under Freedom of Information, Information Commissioner

22 responses to “Non-compliant FOI compliance?

  1. Alan m dransfield

    Jon
    The I CO great ALL my requests as vexatious?!?

  2. Alan M Dransfield

    Sorry should read TREAT all my requests as vexatious.Yet further evidence that this section 14(1) and (2) is complete nonsense. It is being wrongly used to obstruct justice and to pervert the course of justice.

  3. Jeff Davies

    ‘Vexatious’ has just been given, by regulators, as a ‘get out clause’.
    There is utterly no way of ensuring that authorities are disclosing the information they hold. If it’s gonna cause them problems, you can guarantee that they won’t disclose it…similarly, if it holds evidence of perverting justice by the police or other partner agencies.

  4. Alan M Dransfield

    Nail on the head there Jeff but it’s worse than that because the ICO are in concert with HM Judges to rubber stamp the Gagging of Joe Public and in essence, the Dransfield case is being used a Get out of Jail free card.
    Latest developments in my case is, I now have irrefutable concrete evidence that the Exeter Chief’s Rugby bridge has been devoid of any lightning protection since 2006 which proves the Devon CC have committed perjury. The documents also prove my foia case should NOT have been refused under section 14(1) vexatious.
    Whether or not the DCC will continues these lies and deception to the Supreme Court remains to be seen.

  5. crimebodge

    I’m confused. Why would any public authority bother to repeatedly issue a refusal notice when they can just palm the requestor of as vexatious. s14(2) is only a self perpetuating loop as long as Information Officers have no understanding of the smart bomb approach of s14(1).

  6. crimebodge

    Are comments moderated here?

  7. crimebodge

    You might need to look at your comments widget because comments are wiped as soon as I signed into my WordPress account to post. Your comments function even made me sign into the same account TWICE.

  8. crimebodge

    As I said in my last vanished comment… Why would any authority bother with section 14(2) when they can rid themselves of the requester via section 14(1)?

    Labelling the requester as ‘vexatious’ is the quickest and easiest way to deal with any repeat requests surely?

    • I take your point, but is a repeat request by definition vexatious?

    • Alan M Dransfield

      You are SO right Crimebodge but to label the Requester as Vexatious is a breach of section 77 of the FOIA. The ICO thought they had found a FOOLPROOF get out out of Jail free card with the Dransfield GIA/3037/2011.
      Christopher Graham has a lot to answer on the Dransfield Vexatious bull—–

  9. Jeff Davies

    Not necessarily, but they term it that way because it suits.
    Therefore, any ambiguities they reveal, can hardly be clarified by a new slant to the original request or you’ll be deemed as vexatious.
    It’s def a get out clause or an issue that they have manipulated to save revealing full details…!

  10. Alan M Dransfield

    It is VERY apparent that PA now rely upon section 14 (1) and 14 (2) vexatious exemption solely to prevent giving the sought after data.Ditto for section 12 (4) (b)of the EIR.
    If you add the two together there are over 500 vexatious exemptions been used by “Rogue” PA’s Nationwide whose main aim is NOT to release public data since the Dransfield decision on Jan 28th 2013…
    I agree with Jeff Davis that it is a GET OUT of Jail Free Card.. There is compelling evidence only just recently released which proves the Dransfield Vexatious Decision was a “STITCH UP ” by Judge Wikeley ably supported by the Court of Appeal. I refer to the As Built Health and Safety Files (ABHSF) for the Exeter Chiefs Rugby Bridge. This document was released a month ago and is available in the public domain. Lightning Protection is NOT (repeat NOT) mentioned one single time in the ABHSF which means my allegations that the Rugby Bridge is a serious HEALTH &SAFETY issue and WITHIN the Public Interest were correct thus VEXATIOUS should not have applied to my request. Moreover and more importantly the ABHSF recently released twice to two separate FOIA requesters was the SAME document which I requested in April 2009 which mean the DCC/ICO/UT/and the CoA treated Dransfield the person as Vexatious not his requests.
    The ABHSF for the Rugby Bridge WAS available for the DCC/ICO/UT. and the Court to See but they ALL chose to turn a WILFULL BLIND EYE.

    Ironically, I have another UT Hearing to attend (TBC) on an Exeter PFI School which was adjourned owing to “evidence credibility” the Judges words not mine”.
    The DCC/ICO now rely upon GIA/3037/2011 Dransfield v ICO, yes you guessed it, the same old Vexatious claptrap.

    Enough is enough of the Vexatious Bullshit, it is the ICO/DCC/UT and the CoA who are vexatious NOT Dransfield or Dransfield’s requests..

    In the event that Judge Wikeley had got off his fat lazy Ass and insisted on inspection of the ABHSF he would have discovered a MYRIAD of H&S issues with the Bridge but no he accepted the DCC verbal written evidence that the Rugby Bridge was a H&S Flagship..

    I challenge any person to search the ABHSF and find one single entry ref Lightning Protection.
    The release of the ABHSF does in view support my claims of a wider conspiracy by the Tory Party to GAG Joe Public.

    I am the first to admit that PA Nationwide must have some protection for Troublemakers and Time Wasters . But Judge Wikeley go it SO WRONG with his Protean and Holistic bullshit . Dransfield is neither a time waster or a trouble causer and the release of the ABHSF 4 weeks ago is the Proof of the Pudding.
    The burning question now is who will go back over the 500 vexatious decisions reliant upon the Dransfield GIA case but they MUST be REVOKED because they are unsafe.

    • As you are well aware, the grounds upon which you were given permission to appeal to the Court of Appeal were “whether a request can treated as vexatious if it is not itself vexatious but previous requests have been”. Thus the nature of the information you originally requested is irrelevant in these circumstances. If you get permission from the Supreme Court you can try to challenge again the principle that and the extent to which previous requests can “infect” a current one.

      • Alan M Dransfield

        You said”“whether a request can treated as vexatious if it is not itself vexatious but previous requests have been”

        That is factually incorrect Justice Briggs gave me and Mrs Craven permission to appeal the “definition of Vexatious only” not to reargue the facts. Judge Wikeley rewrote the FOIA Statutory Act by adding PROTEAN and HOLISTIC verbage. It is not Judge Wikeley remit, neither the CoA to rewrite the Legal Definition.

        The release of the As Built Health and Safety Files confirm the Rugby Bridge is/was unsafe and unfit for purpose ,hence, a VEXATIOUS decision could only be reached by a perverse mindset .
        The FOIA clearly states that previous vexatious decision does not mean another FOIA from the same person will automatically be found Vexatious as previous. That is clearly not the case with me.
        Also Judge Wikeley was clear in his mindset that ALL FUTURE requests from Dransfield would be Vexatious. Did he have a crystal ball?.
        You, like so many other observers are missing the very important points of the perjury and false information about the Rugby Bridge Lightning Protection which Wikeley stated was WITHOUT FOUNDATION which we now know was bullshit from a simple 5 min ocular inspection of the As Built H&S Files (ABHSF).
        I lay down a public challenge to you via this website.Just do a simple search of the ABHSF on the Bridge and see how many times lightning is mentioned. The answer is ZILTCH so Judge Wikeley was VERY WRONG to claim my H&S allegation were BASELESS.

        My FOIA request was straight forward benign and polite , to which NOBODY has argued. The release (4 weeks ago) of the ABHSF clearly supports the Public Interest Test SHOULD have been applied. The fact that neither Wikeley or the Coa checked the ABHSF speaks volumes of a wider conspiracy to pervert the course of justice.

      • I don’t wish to take up your “challenge” because it is utterly irrelevant to the question of whether previous requests can “infect” a current one, which is clearly the “principle issue” at stake. I however lay a simple challenge to you: explain how your suggestion that Justice Briggs gave you and Mrs Craven permission to appeal the definition of vexatious only, tallies with paragraph 6 of the Court of Appeal’s judgment.

      • Alan m dransfield

        Para 6 of the CoA decision irrelevant because I had no previous vex decisions against me

  11. Alan M Dransfield

    Still waiting for the red or green light from the Supreme Court on this Dransfield Vexatious Bullshit.
    One further issue I would like to run by you is the ICO Vexatious Guidelines accepted by the Court of Appeal were dated Nov 2014 which is 5 years post dated of my original FOIA request.

    Only the guidelines at the time of my original FOIA request were/are applicable.,i.e. Apr 2009??
    Interesting to note also that the last 3/4 vexatious decisions handed down by the ICO do not include any ref to the Dransfield Case.Has the penny just dropped at the ICO that my case is STILL LIVE??
    Your thoughts appreciated as always.

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