On Wednesday I published the first in a series of blog posts defending FOI. This comes in light of the Justice Select Committee’s post-legislative scrutiny of the Freedom of Information Act 2000 (FOIA). In particular what spurred me on to write these blog posts was the obvious attacks towards FOI advanced by some of the public authorities that responded to the Justice Select Committee’s call for written evidence. The link to the written evidence submitted can be found in Yesterday’s post.
In this post I intend to look at the issue of vexatious requests and what some of the arguments on the subject are and why I disagree with them.
ACPO argues that the provisions relating to vexatious requests should apply to both the request and the requester. ACPO states in its evidence that it can demonstrate examples of where three people have engaged entire FOI teams in a force and that this is to the “detriment of other requesters and the proactive publication of information”. I am of the view that the current provisions are more than adequate to cover such situations and that they are probably not being used as effectively as they could. While an authority cannot consider a requestor vexatious they could, in effect, consider their requests vexatious.
Section 14 covers vexatious or repeated requests. In the Commissioner’s guidance there is a list of things that a public authority should be considering when deciding if a request is vexatious. The commissioner states that to consider a request vexatious the public authority should be able to make strong arguments under more than one. There are four headings which could easily be applicable to requestors who are making a high number of requests to a public authority.
However, I do not think that the issue with regards to “vexatious” requests necessarily turns on those who abuse FOI to harass a public authority over a particular grievance that they hold or those who make a larger number of requests on a wide number of topics. I suspect the requests that most people have an issue with are ones like this, this and this. They do on the face of it appear to be rather a waste of time.
I do not take the view that these requests should be classed as “vexatious” or “a waste of time”. Whether you are of the opinion that Zombies or Aliens are real is rather irrelevant. There are people in this country who do believe in ghosts, zombies and alien life forms and no doubt some of them have a genuine fear of attacks. Every person has ha right to feel safe and secure and if contacting their local public authority or Central Government to obtain information that reassures them then there cannot be anything wrong with it. Granted, some of them really were just nonsense and were made off the back of one being featured in the news. However, I do find it much more difficult to defend the third example above.
The Local Government Association recently compiled a list of unusual FOI requests that had been received by Local Authorities over the preceding year. It appeared to be as part of an attack against FOI (or certainly an argument for tighter restrictions on the ability of the public to use FOI rights). However, when I saw some of the requests on the list I had to disagree with the way in which the LGA appeared to be spinning them. For example, Cornwall Council was asked about holes in the privacy walls between toilet cubicles in public toilets and those on council premises. There is, I would submit, a public interest in such matters. These holes could potentially be used for committing indecent acts and thus a criminal offence. Another example pointed out by the LGA was made to Scarborough Borough Council asking about the number of cheques issued and received by the Council. Given that the Banks have been suggesting getting rid of the cheque as a form of payment I do not see it as unreasonable to be gathering evidence as to how cheques are still being used and how frequently.
So, not every request that appears to be “stupid” or “a waste of time” actually is. Of course, there are some who will abuse their FOI access rights and make hundreds of requests which gather no real information at all or who will make requests instead of looking to see if the information is already available or who will use it as a method to continue a personal vendetta against a public authority. However, the vast majority of decent users of FOI who are after serious information or who want to know more about what a public authority actually does for them should not be punished.
ACPO, for example, suggested in its evidence to the Justice Select Committee that public authorities should be able to take into consideration requests made to other public authorities when deciding if a request is vexatious. This, I suggest, would be a dangerous move. Take the Police as an example. In England, Wales and Northern Ireland (where ACPO draws its members from) there are more than 40 geographical and non-geographical police forces. If an individual is after a national picture of some particular matter that is not routinely published either nationally or by each force individually, then there is no option other than to make a separate request to each and every single police force for the information. That is because each police force can only disclose information that it holds. One cannot, for example, write to the Metropolitan Police and ask for all the information on a particular subject for each police force in the UK. The Met would only hold the information that relates to the geographical area that it polices!
Unless information is going to start to be held centrally for all organisations who provide the same functions then when it is necessary to obtain a national picture the only option is to write to every public authority concerned for the information.
I could write a lot more on the question of vexatious requests, but I will leave this topic here for now. I will write further posts on the subject of FOI generally in the coming days and weeks. It is vitally important that the current FOI rights are maintained and not restricted. It is not an expensive luxury, but rather a necessity in an open and democratic nation and it should be easy and (on the whole) free to obtain information from public authorities