Category Archives: vexatiousness

The Savile Tapes – ICO says request for audio was vexatious

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 [2012] 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.

 

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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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Knowing what to overlook

The Upper Tribunal has allowed an appeal by an appellant whose pre-hearing language and allegations had led the First-tier Tribunal to strike out his case.

In a recently handed down judgment Upper Tribunal Judge Jacobs says

Most appellants correspond with the tribunal only when necessary, make moderate criticisms and allegations, and express themselves politely. There is, however, a small body of appellants who are persistent in their correspondence which contains wild allegations that are expressed in an intemperate or aggressive tone…

What gave rise to the proceedings in question was an appeal, by a certain Mr Dransfield, of a decision by the First-tier Tribunal (Information Rights) (FTT) to strike out proceedings remitted to it by a decision of Judge Wikely in the Upper Tribunal (UT). That remittal decision was case reference GIA/1053/2011 – unhelpfully not currently available on the UT website – and is not to be confused with another (leading) decision by Wikely J in relation to an unsuccessful appeal by Mr Dransfield (reference GIA/3037/2011).

The FTT struck out the remitted case using powers conferred by rule 8(3)(b) of Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI No 1976) (“the Rules”), which permits a strike-out if

the appellant has failed to co-operate with the Tribunal to such an extent that the Tribunal cannot deal with the proceedings fairly and justly

It appears that Mr Dransfield was warned by the FTT judge by a direction on 11 January 2012 (I think this should say “2013”, but I quote from paragraph 4 of the UT’s judgment) about the unfortunate, although perhaps unintentional “hectoring tone” of his emails, and rule 8(3)(b) was specifically cited to Mr Dransfield, with the observation that

Co-operation, in this context, includes using moderate language and an appropriate tone 

The warning was reinforced orally, and repeated on 29 April 2013.

Despite this, Mr Dransfield then sent an email on 12 May 2013, which the UT declines to quote in full but which is described thus

Mr Dransfield accused the Commissioner and Council of ‘conniving and colluding to pervert the Course of Justice’ and of producing ‘a pack of lies and deception’. He later referred twice to a ‘wider conspiracy to pervert the course of justice’ and said that there was sufficient evidence to justify arresting the Commissioner’s legal representative and Judge Wikeley for conspiracy to pervert the course of justice

Accordingly, the proceedings were struck out, the same day.

Interestingly (and no doubt to the frustration of some of those involved), Mr Dransfield’s appeal of this strike out has succeeded. Jacobs J  follows the words I quote at the start of this piece with

It is usually possible to deal with that small minority of appellants without resorting to the power to strike out proceedings. It is possible to ban a party from using emails and direct that any that are sent will be ignored. Another way is to limit a party to communicating in writing and only when requested, with other letters being filed but ignored. At a hearing, it is possible to limit the time allowed to a party or, if necessary, to require a party to leave the hearing room. In my experience, measures such as this are usually effective

In short, Jacobs J says that case management powers can be properly used to manage a potentially difficult litigant, and should not in this case have led to the “draconian step” of striking out Mr Dransfield’s appeal. The type of allegation made by Mr Dransfield is “regularly made in appeals before this Chamber and just as regularly ignored by the judges”.  The power to strike out and the duty to cooperate are in a “reciprocal relationship” with the overriding objective “to enable the Tribunal to deal with cases fairly and justly” at Rule 2, and specifically those parts of Rule 2 which require flexibility in the proceedings (2(2)(b)) and that the parties are able to participate fully in the proceedings (2(2)(c)).

Jacobs J ends his judgment by noting that the FTT could have employed more flexible responses “without depriving Mr Dransfield of his right of appeal” and observes, by quoting William James

‘the art of being wise is the art of knowing what to overlook.’

Very true, but I think I would just add a general point that – sometimes – some things can be too big to overlook. There will still be some cases where the failure to comply with the duty to cooperate properly merits the striking out of proceedings.

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Walberswick Vexatiousness

Back in August of this year I blogged about an interesting decision by the First-tier Tribunal (Information Rights) (FTT) which approached the subject of “vexatiousness” (section 14(1) of the Freedom of Information Act 2000 (FOIA) by observing that what might be an excessively burdensome to a small public authority (such as a rural parish council) might not be so to a large public authority.

The public authority in question was Walberswick Parish Council, and, since that decision, there have been two others, meaning that Walberswick now has more experience in the FTT than most county councils and many other huge public authorities.

All three cases relate to refusals to disclose information on the grounds that the requests were vexatious, and the most recent – McCarthy v IC & Walberswick Parish Council – is no different: and, indeed, they all follow the line of authority on vexatiousness laid down by the Upper Tribunal earlier this year in ICO v Devon County Council and Dransfield GIA/3037/2011. What is noteworthy, however, is the disapproval with which the judge clearly views the continuing vexatious requests being made to Walberswick:

WPC is a parish council, not a department of state. The limits on its resources were well-known to the Appellant and to everybody else involved in this unhappy saga…It is plain that FOIA requests, both those made by the Appellant and the others of which he was concurrently aware, reduced WPC to paralysis…Furthermore, it was perfectly plain to any sensible individual and without doubt to one of the Appellant`s sophistication and social awareness that such pressure would drive elected and ultimately appointed councillors from office, as well as their clerk, who was at the centre of the battle.

Indeed, so concerned was the FTT that, very unusually, it put future requesters on warning on potential costs

WPC will not function as a democratically elected body until this bombardment by FOIA requests ceases. That may well mean that, as here, intrinsically reasonable requests for information are treated as vexatious if part and parcel of a sustained assault motivated by a desire to disrupt. Crippling a parish council by subjecting it to ceaseless interrogation is not a sensible way to improve its service to local residents nor to fulfil its duties under FOIA…it is highly unlikely that any future appeal from this parish council will be decided on different principles or without regard to the outcome of this and earlier appeals relating to Walberswick. Unsuccessful appeals by campaigning requesters may well attract the unusual sanction of orders for costs

(In passing, I would query whether this statement is potentially prejudicial to future cases in the FTT, and could actually deter people from making legitimate requests. In fact, it seems to suggest that any FOIA request to Walberswick could be considered to be prima facie vexatious. In fairness to the FTT though, this is merely the outcome of the “sustained assault” by the current campaigners).

Awards of costs in the FTT are very rare (I can only recall three cases). To put as-yet-unknown requesters, who haven’t yet made requests, on notice is a measure of how seriously the FTT view the harm caused by a campaign such as that experienced by Walberswick. In administrative law we already have the concept of Wednesbury Unreasonableness – one wonders if, in this particular branch of administrative law, we should start using Walberswick Vexatiousness as a term of art?

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Small Council, Big Burden

“Parish Councils are the smallest unit in our system of elected government…In rural areas their jurisdiction typically extends to a single village or perhaps two or three, depending on size…Their budget generally runs to a few thousand pounds a year…They generally employ one part – time clerk to perform secretarial and administrative tasks… Their income derives from their precept – usually a small fraction of the Council tax. Most Parish Councils probably have little experience of FOIA requests for information.”  (EA/2013/0022)

When judgment was handed down earlier this year in the key case on vexatious requests under the Freedom of Information Act 2000 (FOIA), Wikely J said

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).

The first of these comes into important focus in a recent decision by the First-tier Tribunal (Information Rights) (FTT). In Harvey v ICO and Walberswick Parish Council (EA/2013/0022) the Council had received nearly five hundred FOIA requests (from various requesters) in a two-year period  (by way of contrast, county councils (which are hugely better-resourced) will perhaps have received about 2000-3000 over a similar period). It is not clear how many of these were made by the applicant, but the judgment says she was one of four residents who made the majority of them (which appear to stemmed from planning issues). At some point the Council had ill-advisedly purported to exclude requesters from making further requests. This in itself had only generated more requests. At one point all the parish councillors resigned as a result of the stress, tension and acrimony.

The request here was of a type often called a “meta-request” (a request about a previous request). It was for information about fifty previous requests refused on the grounds of cost. This meta-request was also refused, on the basis that, per section 14(1) of FOIA, it was vexatious. The FTT noted the dicta of Wikely J to the effect that

The purpose of section 14 must be to protect the resources (in the broadest sense of that word) of the public authority from being squandered on disproportionate use of FOIA.

and applied this to the fact that the public authority in this case was a small parish council

Parish councils are not equipped to handle a torrent of FOIA requests and, we suppose, very rarely do so. If WPC was failing to handle such matters efficiently, to bombard it with an unending further stream of requests and demands seems an odd way of helping it to improve its service […] the grossly excessive burden placed upon the resources of WPC by the flood of requests, of which this was one, is the decisive consideration in any assessment as to whether it was vexatious.

A hero emerges from the judgment (no doubt the four requesters do not see her in this light): Mrs Gomm, the parish clerk. Before she arrived “FOIA issues –and probably other council functions – were not efficiently handled” but, in far exceeding her hours and “left at one stage to her own devices and with no authorised source of income for her services” she wrote “admirably clear and courteous responses, which accurately addressed the issues of law involved”, in the face of “relentlessly agressive” correspondence.

(I wonder if Mrs Gomm might have been behind the rather odd outcome to the events, whereby the parties agreed the pragmatic step of disclosing the information just before the appeal hearing (this was not, said the FTT, an acknowledgment that the request had not been vexatious).)

The judgment shows that – although all public authorities have the same obligations under FOIA-  the smaller they are, the greater the burden, and that this can come into play on an analysis of whether a request has been vexatious. The judge ends with an odd but memorably alliterative observation:

Remorseless repetition of regressive requests is not a sensible way to improve performance

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ICO cites Upper Tribunal on “vexatiousness”

The Information Commissioner has issued his first decision notice citing the Upper Tribunal’s judgments on “vexatiousness” since the latter were handed down

On 7 February 2013 the Upper Tribunal handed down judgment in three appeals relating to requests for information which had been refused either under section 14(1) of the Freedom of Information Act 2000, or regulation 12(4)(b) of the Environmental Information Regulations 2004. These two provisions provide, respectively, that the general obligation on public authorities to disclose information on requests is disapplied if the request is “vexatious” or “manifestly unreasonable”. Until the Upper Tribunal ruled on these cases there had been no authority from a relevant appellate court, and there was considerable variation in how the Information Commissioner and the First-tier Tribunal (Information Rights) approached these cases – I recently wrote about this position of uncertainty for PDP’s FOI Journal.

Both Paul Gibbons and Robin Hopkins have written, comprehensively, about the Upper Tribunal’s decisions, and the NADPO Spring Seminar will feature James Cornwell, of 11KBW, talking about the subject, so I merely blog now to observe that the Information Commissioner (IC) has correctly also taken note of them. In upholding a decision to refuse to disclose information, in decision notice FS50459595 (regarding a request to the Chief Constable of Surrey Police) he says

In reaching a conclusion in this case the Commissioner is also assisted by the Upper Tribunal’s comments in the case of Wise v Information Commissioner: “Inherent in the policy behind section 14 (1) is the idea of proportionality. There must be an appropriate relationship between such matters as the information sought, the purpose of the request and thetime and other resources that would be needed to provide it.”

It is interesting to note the IC’s reliance on this passage. What is also interesting (and not to be criticised) given the timing, is that the IC continues to refer to his own guidance (“When can a request be considered vexatious or repeated?”) in determining these sort of cases. The Upper Tribunal, while saying that “there is much to commend in the IC’s Guidance” (¶41 of the Dransfield judgment) did go on to give strong hints that it might need revising

in accordance with the thrust of this decision, it may be that the Guidance needs to place greater weight on the importance of adopting a holistic and broad approach to the determination of whether a request is vexatious or not, emphasising the attributes of manifest unreasonableness, irresponsibility and, especially where there is a previous course of dealings, the lack of proportionality that typically characterise vexatious requests

The fact that the IC honed in on the concept of a proportionality approach in this recent decision notice suggests the revised guidance might be appearing sooner rather than later.

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