Last week, in the Court of Appeal, the indefatigable, if rather hyperbolic, Mr Dransfield was trying to convince three judges that his request, made long ago, to Devon County Council, for information on Lightning Protection System test results relating to a pedestrian bridge at Exeter Chiefs Rugby Ground, was not vexatious. If he succeeds in overturning what was a thorough, and, I think, pretty unimpeachable ruling in the Upper Tribunal, then we may, at last, have some finality on how to interpret section 14(1) of the Freedom of Information Act 2000 (FOIA):
a public authority [is not obliged] to comply with a request for information if the request is vexatious
But what is certain is that the Court of Appeal will not hand down a ruling which would allow a public authority to feel able merely to state that a request is vexatious, and do nothing more to justify reliance on it. But that is what the Metropolitan Police appear to have done in an extraordinary response to FOIA requests from the Press Gazette. The latter has been engaging in a campaign to expose what it believes to be regular use of surveillance powers to monitor or investigate actions of journalists. This is both a serious subject and a worthy campaign. Investigative journalism, by definition, is likely to involve the making of enquiries, sometimes multiple ones, sometimes speculative, “to discover the truth and to identify lapses from it”. It is inevitable that an investigative journalist will from time to time need to make use of FOIA, and the Information Commissioner’s Office (ICO) advises that
[public] authorities must take care to differentiate between broad requests which rely upon pot luck to reveal something of interest and those where the requester is following a genuine line of enquiry
The ICO doesn’t (and couldn’t) say that a FOIA request from an investigative journalist could never be classed as vexatious, but I think the cases when that would happen would be exceptional. The Upper Tribunal ruling by Wikeley J that Mr Dransfield is seeking to overturn talked of “vexatious” as connoting
a manifestly unjustified, inappropriate or improper use of a formal procedure
It may be helpful to consider the question of whether a request is truly vexatious by considering 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)
although it was stressed that these were neither exhaustive, nor a “formulaic checklist”.
It is difficult to imagine that the motive of the Press Gazette journalists can be anything but well-intended, and similarly difficult to claim there is no value or serious purpose to the request, or the other requests which need to be considered for context. Nor has there been, as far as I am aware, any suggestion that the requests have caused Met staff any harassment or distress. So we are (while noting and acknowledging that we are not following a checklist) only likely to be talking about “the burden on the public authority and its staff”. It is true that some requests, although well-intentioned and of serious value, and made in polite terms, have been accepted either by the ICO or the First-tier Tribunal (FTT), as being so burdensome to comply with that (even before considering whether FOIA costs limits are engaged) they merit rejection on vexatiousness grounds. In 2012 the FTT upheld an appeal from the Independent Police Complaints Commission, saying 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 [costs limits]
and last year the FTT similarly allowed a late submission by the Department of Education that a request from the journalist Laura McInerney for information about Free School applications was vexatious because of the burden it would impose:
There is no question here of anything in the tone of the request tending towards vexatiousness; nor does anyone doubt Ms McInerney’s genuine motives…There is value in openness and transparency in respect of departmental decision making. That value would be increased by the academic scrutiny which the disclosed material would receive…In our judgment, however, these important considerations are dwarfed by the burden which implementation of the request places on DFE.
But it does not appear that the request in question from the Press Gazette was likely to go any way towards being grossly oppressive, or to being a burden which would “dwarf” the other considerations.
Moreover, and it does not appear to have been a point argued in the DfE case, there is an argument, explored through a series of cases in the Court of Justice of the European Union, and, domestically, in the Supreme Court, in Kennedy v ICO and Charity Commission, that Article 10 of the European Convention on Human Rights, providing as it does in part a right “to receive and impart information and ideas without interference by public authority” (subject to limitations that are prescribed by law, necessary and proportionate, and pursue a legitimate aim) might sometimes need to read down into FOIA, particularly where a journalist is the requester. Although the Supreme Court, by a majority, and on the facts (specifically in the context of a FOIA absolute exemption), rejected the submission in Kennedy, the argument in the abstract still has some weight – someone engaging in investigative journalism is clearly generally acting as a “social watchdog”, and the likelihood that they are making a FOIA request with bad motives, or without serious purpose, or in a way likely to harass or cause distress is correspondingly low. It seems to me that, absent the sort of “excessive burden” argument explored in the IPCC and DfE cases – and, as I say, the Met don’t seem to have advanced any such argument – to label a request from an investigative journalist as vexatious is to stand at the top of a slippery slope. One hopes that the Met review and reverse this decision.
p.s. In a world in which we are all journalists, this all has the potential to get very complicated.
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.