FOI Man reviews new guidance from the Information Commissioner around the controversial issue of vexatious requests.
Ever since the important decisions made by Judge Wikeley in the Upper Tribunal earlier this year, it has been inevitable that the Information Commissioner would have to change his approach to the use of the vexatious provision within FOI. Combined with suggestions in the post-legislative scrutiny last year that it should be easier for public authorities to refuse vexatious or frivolous requests, the Commissioner’s relative reticence in his guidance and decisions appeared out of step with political and legal developments.
So today, the Information Commissioner’s Office (ICO) has published new guidance on Dealing with Vexatious Requests (section 14(1)), as well as on the related subjects of Manifestly Unreasonable Requests (regulation 12(4)(b) of the Environmental Information Regulations) and Repeat Requests (section 14(2)). And the approach of the Commissioner appears to have changed fairly radically. The guidance starts strongly by stating that:
“…public authorities ought not to regard Section 14(1) as something which is only to be applied in the most extreme circumstances, or as a last resort. Rather, we would encourage authorities to consider its use in any case where they believe the request is disproportionate or unjustified.”
The emphasis now is on requests which “cause a disproportionate or unjustified level of disruption, irritation or distress”. Out have gone the Commissioner’s notorious 5 questions. In their place come 13 – count ‘em – 13 “indicators” based on the ICO’s experience of dealing with section 14. These aren’t “qualifying criteria” and authorities are discouraged from spending too much time trying to fit the facts to them. It is stressed that they are there purely as a handy guide.
The guidance suggests a process for establishing if a request causes a disproportionate or unjustified level of work. Authorities should:
- consider the purpose of the request if apparent and any wider public interest
- balance this against the impact on the authority
- take the context and relevant history into account
The ICO have taken some key areas of contention and talked about how they might be affected by this new change in emphasis.
Burdensome requests should if possible be refused under section 12 (the acceptable cost limit). However, following on from last year’s Salford City Council v Information Commissioner Tribunal decision, the ICO now accept that section 14 could be used to ‘plug the gaps’ in the fees regulations, for example, where redaction would take a long time (redaction can’t be included in cost estimates for the purpose of section 12). It is clear though that the ICO will take some convincing in particular cases before accepting this use.
Round Robins, requests sent to several authorities at once, are mentioned. Public authorities can point to the fact that a request has been sent to other organisations, but the judgment as to whether a request is vexatious must only be made on the basis of the burden on themselves.
Controversially, perhaps, “fishing expeditions” are singled out, and journalists identified as the main perpetrators. This common tactic – where a requester makes a very broad request in the hope of catching a juicy titbit in their net – is widely criticised by public bodies, and one senses that the Commissioner has finally found a way to offer a modicum of reassurance to authorities on this issue. Whilst the Commissioner stops short of saying that all such requests will be vexatious (and indeed adds the usual caveats), it is interesting that the practice is highlighted as an area that might legitimately attract the use of section 14.
The guidance isn’t all one way. Authorities are warned that they need to “absorb” a certain amount of disruption and annoyance. And the guidance often seems to go out of its way to persuade public bodies to try just about anything else to avoid section 14. A whole section is dedicated to “Alternative approaches”. Nonetheless, the guidance does seem to indicate a significant change of emphasis from the ICO, and one that will be welcomed by many public authorities.
If you’re still hungry for more after all 37 pages on section 14(1) of FOI, there is still the guidance on manifestly unreasonable and repeated requests to digest. Handily for both the ICO and busy FOI Officers, Judge Wikeley found that the exception for manifestly unreasonable requests in the EIR should be interpreted in the same way as section 14(1) of FOI. So the first part of the ICO guidance says just that – if you think a request for environmental information is effectively vexatious, you should follow the guidance on vexatious requests under FOI.
It does however spend more time considering how the exception should be applied to requests that would be expensive to answer. In a nutshell, there will be circumstances where it is appropriate to refuse burdensome environmental requests under this provision (as Judge Wikeley noted in Craven), and section 12 (and the related fees regulations) of FOI may provide some pointers, but authorities should expect to provide more environmental information than they would other information.
The guidance on repeated requests (FOI section 14(2)) uses new improved examples to make the same points that have been made before. There is nothing fundamentally new here to take on board.
Interestingly, tied in with all this new guidance for public authorities is a guide for requesters on How should I word my request to get the best result? How can I describe it? It’s…it’s…well, it’s a sort of Code of Practice for requesters on the best ways to avoid being labelled as vexatious. That reminds me of something…. (see Recommendation 7)
Anyway, the guide contains some handy dos and don’ts and advises requesters that their request will be more effective if it is CLEAR, SPECIFIC, FOCUSED, UNTHREATENING. Whilst those are the ICO’s capitals, many FOI Officers would probably add SPARSELY CAPITALISED. Seriously though, it will be helpful if more prospective requesters can be pointed towards guidance like this.
So overall this new guidance will be welcomed by FOI Officers, though with some reservation. Whilst it answers a lot of questions, some may well ask how a single sentence in the Act can require so many pages of explanation. There are points where the ICO appear to want to have their cake (to be seen to encourage public authorities to utilise this provision) and to eat it as well (to be seen to discourage its use). One can understand why the regulator has difficulty here, but it limits the comfort that might be offered to authorities by this guidance. And until we see decisions of both Commissioner and Tribunals backing the approaches spelt out here, many will remain nervous of using this provision. But this is a significant step in the right direction.