[reposted from LinkedIn]
The holding and expression of gender critical beliefs was not valid evidence for LNER to take into account in determining that an FOI request was vexatious.
Can a public authority take into account a requester’s public comments elsewhere, when considering whether a request is vexatious under s14 of the Freedom of Information Act 2000, in circumstances where the comments are expressions of a belief, the holding of which is a protected characteristic under the Equality Act 2010? The answer, says the Information Commissioner’s Office, in a well-argued decision notice, is “no” – however much the authority might disagree with the expressions.
The request was to London North East Railway (a company wholly owned by the Department for Transport), and therefore a public authority for the purposes of FOIA), and was for information about the process and costs of decorating a train in Pride colours, the processes for selecting train designs more generally and about plans for future designs.
LNER refused the request as vexatious, and justified this to the ICO on grounds including the content of social media posts by the requester
have demonstrated views that indicate a bias against transgender individuals, [that complying could lead to] harmful discourse and cause distress to our transgender employees and the people that the Pride train represents [and that the requester’s] focused questions on binary sex divisions and the specific targeting of a Pride-themed train…indicates a shift toward a disruptive agenda rather than an informational one.
In response, the requester
accepted that she had a binary view of sex, but…that this was a protected belief [citing Forstater v CGD]
LNER had therefore, in her view,
unlawfully discriminated against her because it had refused to provide information, that she would otherwise have been entitled to receive, due to her beliefs.
The ICO ruled that LNER had been entitled to take “a holistic view of the request” and nothing in principle had prevented it taking account of social media posts. However
the question of vexatiousness does not turn on what the complainant’s beliefs are, or are not. Nor whether she is, or is not, entitled to those beliefs
The question was “whether the request had a serious purpose and value” – here, it did – and whether that was outweighed by factors pointing towards vexatiousness. The ICO found that it was not:
the complainant’s motivation may well have a grounding in her beliefs, but the public authority has not demonstrated that she has made the request just to be disruptive, or just to target individual. Nor has it demonstrated that it would be subject to an unjustified burden if it were to respond to the present request
The right to information under FOIA is a species of the Article 10 ECHR right to receive and impart information. This is an important decision by the ICO on the extent of the right.
The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.
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