FOIMan brings you the third installment of his series for PDP’s Freedom of Information Journal.
In part III of the Practically Speaking series, I looked at the fraught subject of how to apply the provision for vexatious requests under FOI. The piece was primarily informed by the important decisions made by Judge Wikeley back in February. As you’ll see from the postscript, things had moved on again by the time this piece came to print, but the key points I made here are broadly still relevant. And it features Monty Python and a judge riding to the rescue.
The next instalment covers the appropriate limit – when can requests be refused on cost grounds? Part V will cover whether information is held, before the series concludes (for now at least) with a look at the difficulties and ethics of who should be consulted before a response is sent out.
Category: Uncategorised / Tags: FOI Section 14
In the first of a new series, FOI Man looks at section 14 of the Freedom of Information Act – covering vexatious requests – and what every FOI Officer – and every requester – needs to know about it.
If you’ve ever watched Monty Python and the Holy Grail, you’ll recall King Arthur’s encounter with the Black Knight. The knight challenges him to combat. They battle. Arthur chops his arm off and claiming victory, makes to leave. But the knight, in denial of all sense (yes, I know it’s a comedy, but bear with me on this), won’t accept defeat and insists that Arthur keep fighting. No matter how many limbs Arthur lops off, the knight is insistent that the conflict continue. Eventually Arthur walks off whilst the knight, now literally without a leg to stand on, continues to shout after him.
But when you’re providing a public service and legally obliged to respond to enquiries, you can’t just walk off. Or can you?
That’s what section 14 provides for. FOI Officers rarely deal with medieval knights, but we are familiar with that kind of bloody-minded (if not bloody-bodied) determination. There are people who refuse to take no for an answer. There are others who are more like an attention-seeking child repeatedly prodding its older sibling or a kitten jumping up and down on a weary old dog. The answers aren’t necessarily important – it’s about provoking a response.
More recently, it’s becoming clear that section 14 is FOI’s answer to gluttony. It can be used to refuse requests where one request threatens to eat the public authority out of house and home.
Virtually anything. It’s the nature of the request itself that triggers this provision, not the information requested.
Things that FOI Officers need to know
- “Vexatious” isn’t defined in the Act. So the case law and guidance that is available is essential to understanding how it can be used.
- Vexatious requests have to be refused in writing. Allowing the requester to appeal the decision through internal review is a good idea given the controversial nature of these refusals.
- When considering whether a request should be refused as being vexatious, Justice Wikeley, who analysed section 14 in detail as part of an Upper Tribunal decision, suggests four things to consider: the burden, the motive, the value or serious purpose, and whether the request causes distress or harassment to staff.
- The burden – consider the number of requests previously made; the breadth of the request (but consider asking them to narrow their request or refusing on cost grounds first); the pattern of requests (eg are several made within days of each other?); and the duration (has this been going on for some time, and does this suggest it will continue in the future?). Recent case law suggests that where requests can’t be refused on cost grounds (section 12 – for example if it would take a long time to read through and redact material), section 14 may be used. However, it is still unclear where the line can be drawn – the information in these cases ran to thousands of pages. The key, almost certainly, is going to be to demonstrate that the work involved is disproportionate (see paras 15 and 16) – and that will vary depending on the size and complexity of the organisation, and of course what the purpose of the request is.
- Motive – you can’t be “purpose-blind” in considering this aspect of FOI. It will often be difficult to be sure what someone’s motive is. In many cases, where you do know – eg you know the requester is a journalist researching a story – it is likely to be a reason NOT to use section 14.
- Value or serious purpose – obviously closely connected to considerations of motive. And equally difficult. It might be that a series of requests starts out as having an obvious purpose (eg finding out information relating to a legitimate complaint), but over time “drifts” into vexatiousness as the requester draws in more and more unconnected issues. FOI Officers should never consider using section 14 purely because they can’t see a serious purpose or value behind a request – only if there are other reasons to think a request is vexatious.
- Causing harassment and distress to staff – if a request (or series of requests) appears to target an individual obsessively, is aggressive or uses what Justice Wikeley describes as “intemperate language”, it can be used as evidence that a request is vexatious. It is probably safest to be able to point to other reasons as well.
- Case law increasingly supports a “holistic” interpretation. As Justice Wikeley put it (para 45), the danger is “not being able to see the vexatious wood for all the individual trees”. Basically, listen to your gut.
- EIR requests – regulation 12(4)(b) – “manifestly unreasonable” – is broadly equivalent to FOI’s section 14 (para 30). Therefore much of what is said here will apply to that exception.
- Repeated requests – for a long time, section 14(2) of FOI, covering repeated requests, has been talked about as being a separate provision. Justice Wikeley thinks it should be seen more as a subset of vexatious requests.
Things that requesters need to know
- Vexatious sounds bad. Most people aren’t going to like being called vexatious. But don’t take it too personally if you receive a response citing section 14 – the flip side of recent case law is that requests might well be classed as vexatious even if you had no intention to annoy. It is fundamentally a tool to help public authorities manage the workload of FOI, just as section 12 and the fees regulations are.
- Avoiding getting a request refused under section 14 – don’t get personal. Asking questions about an individual member of staff (eg “I want to know how much John Smith has claimed in expenses?”) is likely to get people wondering if you’re trying to harass Mr Smith, especially in the context of a long standing correspondence or dispute with that member of staff. If the FOI Officer asks you to narrow down your request, be cooperative, especially if they explain that it will take a long time to review and redact relevant material. If you ask about zombies, aliens and the supernatural, you’re just as likely to receive a refusal under section 14 as you are to receive a witty response – quite rightly as you’re wasting taxpayers’ money.
- Challenging a decision – demonstrate that your request has a serious purpose; question how much work the authority is claiming is involved and whether it imposes a disproportionate burden (for example, a Government department is more likely to have the resources to review 1000 pages of information than, say, your local GP surgery); keep calm – otherwise you may just compound the impression of an obsessive person causing undue harassment.
Essential case law
FOI Man says…