The First Tier Tribunal (Information Rights) has issued a very strongly worded judgment in an appeal by the Independent Police Complaints Commission (IPCC) against the decision of the Information Commissioner.
The decision relates to the application of s.14(1) of the Freedom of Information Act 2000 which provides that a public authority does not need to comply with a request for information made pursuant to the FOIA if the request is repeated or vexatious. It is important to note though that the Act requires the request to be repeated or vexatious and not the person making the request. A person could quite conceivably make two requests to an authority on the one day and have one deemed as vexatious and the other not.
The Tribunal made some important comments in its decision, particularly in the current climate arising out of the post-legislative scrutiny of the FOIA. The Tribunal, quite correctly, said:
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.
Those who use FOIA rights to harass public authorities and to continue a campaign going against a particular authority (or group of authorities) damage the information access rights that have become so vital to our democracy. It frustrates the public authority which can in turn lead to a culture against FOIA in an authority (which can be seen in some of the recent comments and submissions surrounding the post-legislative scrutiny of the FOIA). Not only that, but it can lead to a tightening up of the Act which may have a damaging effect on those who use the rights responsibly. It does come to mind that perhaps the Tribunal has had the post-legislative scrutiny of the Act in its mind when writing this decision.
The Tribunal continued:
In our view, the ICO and the Tribunal should have no hesitation in upholding public authorities which invoke s.14(1) in answer to grossly excessive or ill – intentioned requests
The frustration felt by public authorities who deem requests to be vexatious, and are then subsequently told by the ICO or the Tribunal to deal with the request is quite understandable. Some authorities are perhaps not using the s.14(1) exemption as much as they ought to while others are perhaps using it inappropriately. While it is important that Public Authorities feel confident in using the s.14(1) exemption and that the ICO and Tribunal will support them it must not get to the point where public authorities feel over-confident in using the exemption because the ICO and the Tribunal will always support them.
It has always been a fundamental principle of FOI that the requester and their reasons are largely irrelevant in the consideration of a request for information. Anything which harms that in turn harms FOI. Some people may make repeated and frequent requests to a public authority, but that does not mean that those requests should automatically be exempt by virtue of s.14(1): the s.14(1) exemption must not become a way for authorities to keep matters that ought to be released secret. In the context of this decision the Tribunal was clearly correct to hold that the requests were vexatious. Making roughly one request every month for two years to one authority, some of which are wide and indiscriminate in nature, is clearly an abuse of the FOIA and the IPCC were entirely correct in applying s.14(1) to Mr Andrew’s requests. It is hard to imagine a legitimate purpose that would result in such a large volume of requests being made to a single authority.
It is good that the Tribunal issued such a strongly worded judgment in this case and hopefully it will begin to go some way to alleviating fears mong authorities in relation to being unable to deal with people who place a significant burden on the authority with what can on occasions appear to be a complete obsession with the authority. One only needs to look at the WhatDoTheyKnow website to see examples of people who have an unhealthy obsession with uncovering corruption that really doesn’t exist (as an example of vexatious requests in action).
prout de jure 