FOI Man suggests that a new decision from the Information Tribunal seems to reflect an awareness of wider developments in FOI.
Despite all the conflicting messages coming out of the evidence to the Justice Select Committee’s post-legislative scrutiny of FOI, there was one issue that appeared to attract a relative degree of consensus. The MoJ, the Information Commissioner, public authorities, and some bloke called Paul Gibbons, all agreed that the provision for dealing with vexatious requests at section 14 of the Act needed attention. And it seems like the members of the Information Tribunal First-Tier (or at least some of them) have been following events at the post-legislative scrutiny closely.
The problem with section 14 (or more specifically section 14(1)), is that “vexatious” isn’t defined in the Act. Generally the Commissioner and Tribunals in the past have said that it should be understood to have its normal English meaning. But in practice, at different times, they appear to have had different understandings of what that is. Which is helpful, clearly.
We know that some individuals use the Act to make requests that have no serious purpose. Whether it be requests for zombie invasion plans or for expenditure on red pens, they don’t do FOI any favours – especially when the Act itself is under review.
And it seems that the Information Tribunal First-Tier (or at least those members who considered this case) takes this view. In a decision published last week, they ruled that the Independent Police Complaints Commission did not have to provide information requested by an individual and upheld the authority’s use of section 14(1). In doing so, they over-ruled the Commissioner, and argued that his approach to section 14(1) was too restrictive. They were also unequivocally critical of the requester himself.
The decision itself is interesting, in that it will give some encouragement to FOI Officers who have often felt discouraged by the Commissioner’s decisions and guidance from using this provision even when it might reasonably be seen as justified (despite the fact that the Commissioner has regularly and publicly encouraged them to use it more). But what is most interesting to me is that the decision appears to make reference to developments in and around the post-legislative scrutiny, when it says at paragraph 19 that:
“Abuse of the right to information under s.1 of FOIA is the most dangerous enemy of the continuing exercise of that right for legitimate purposes. It damages FOIA and the vital rights that it enacted in the public perception.”
The Tribunal also looked at refusal on the grounds of cost in this case (even though it arguably didn’t have to, given that it upheld the use of s.14(1)). The decision supports a fairly broad interpretation of the regulation 5(2) provision in the FOI fees regulations allowing public authorities to aggregate costs of requests for “similar” information received within a 60 working day period.
Again, arguably this could be interpreted by some as an attempt by the Tribunal to demonstrate that they support a pragmatic approach by public authorities. Could it be that the Tribunal has been stung by recent criticism from those such as Lord O’Donnell giving evidence at the Justice Committee’s hearings?
Unfortunately a tougher line by ICO / Tribunal will not assist that much when there is no sanction. In my experience, except for the most trivial requesters who were just ‘having a bit of fun’, the normal response of anyone who makes a request which is branded as vexatious is (a) to require an internal review and (b) complain to ICO if upheld and then (in admittedly a smaller proportion) (c)appeal to Tribunal if upheld by ICO. So in many cases one knows that using s14 successfully will cost far more than just gritting the teeth and responding.
So yes – agreed it needs attention, but the way out is far from clear.
Not saying I disagree with Phil’s point, and it is a very important one to make, but my own experience of applying the s14(1) exemption has been more constructive. I’ve used it about 6 times in total, and only once was an internal review requested. This review upheld the original decision and the requester did not appeal to the ICO. I rather suspect that this might be the exception rather than the rule though, and Phil is quite right that there is little to lose for the vexatious requester as it stands.
A well overdue decision.
I have yet to find a public authority that actually welcomes FOI. Sure they may *say* they do, that they welcome it but in my experience that is all window dressing. Public authorities don’t like scrutiny, never have and never will – unless it serves their purposes.
So why is this relevant?
Well, the use of FOI by businesses, students, and complainants that have exhausted the complaints process all found delight in the discovery of FOI. Free work. Free. No fee, all freeeeee.
I once recall doing a talk at a city law firm on updates to DP and FOI – in 2006. FOI was in its relative infancy and the delegates (mostly solicitors) were shocked at the seeming scope for ‘abuse’. I painted the analogy of each request being akin to a christmas present worth £450, being given away for ‘frivolous’ requests and vexatious requesters. Yes, yes I know that s14 states the request, but lets be honest… its about an individual or a group. It always boils down to the person making the request.
What is clear is that some people will seek ‘victory’ by merely having poor council staff do work by answering requests. For them the success is making others suffer – I truly believe that some requesters so this. Yes a minority but in terms of workload and stress it is hugely significant.
All this was possible, enshrined in the legislation, and the ICO’s guidance – whilst very welcome – was perhaps not inviting enough for public authorities to use without some element of fear. I commend ICO for their sensible and independent support for public authorities.
So back on topic, this case clearly shows some appreciation for the cause of the public authority. A great move in the right direction and within touching distance of allowing an individual to be termed vexatious.
Now if the MoJ, FTT or UTT can get rid of those blasted students and companies abusing FOI 😉
Actual FOI request recently received from an individual whose job title is ‘Sales Director’:
“Under the freedom of information act is it possible provide me with the email, postal addresses and telephone contact details of the practice managers within [PCT AREA].
This information will not be published or sold but would be used for occasional contact regarding services that would be of interest to the practice managers.”
How does this not translate as “Please spend taxpayers money on doing my research for me so I don’t have to pay someone in my company to go and retrieve this data from http://www.nhs.uk even though it’s readily available there.”
The above would only take seconds to answer – but that’s not the point, many equally transparently-for-the-purpose-of-spamming-already-insanely-busy-staff with yet more e-mail saying “BUY MY STUFF” requests are much more time-consuming.
I personally do not want to see FOI weakened. But e-mails like these – and oh, don’t we get lots of them – are annoying, and a large part of the reason that so many people DO want more restrictions.