Persistant or Vexatious?

Vexatious requests (and indeed vexatious requestors) has been a battleground since the introduction of the Freedom of Information Act 2000 and Freedom of Information (Scotland) Act 2002.  Both the FOIA and FOISA look at the request rather than the requestor when it comes to considering a vexatious request.  While other contact between the requestor and the public authority can (and will) be considered it is not about proving that the requestor is a vexatious requestor (in the way a court can declare a litigant as vexatious), but rather demonstrating that their request is vexatious.

The UK Information Commissioner has recently issued a decision notice looking at Leicester City Council’s use s.14(1) of the FOIA and made some interesting comments regarding the Council’s handling of this particular request.

The complainant has a history of corresponding with the Council over issues to do with it’s compliance with a particular section of the Licensing Act 2003.  There were more than 150 pieces of correspondence given to the Commissioner by the Council in support of its position that the requestor was vexatious.  There are a number of interesting facts about this case which appear to have influenced the Commissioner’s decision.

The Council is required to make certain information available to the public upon request by the 2003 Act.  Leicester City Council makes this information available online and is therefore easily accessible to members of the public via the Council’s website.  However, the Council did not seek to rely on the exemption at s.21 of the Act (information otherwise available).  One can only speculate as to the Council’s reasoning for this, but it might be influenced by the following facts.  The Complainant in this case only ever corresponded with the Council and the Commissioner by way of handwritten letters.  The Commissioner said, at paragraph 9, that the complainant’s letters demonstrated “no indication of any familiarity on the part of the writer with any branch of information technology.”  This is interesting in that it appears as though it might have gone someway to influencing the Commissioner’s decision.  150 pieces of correspondence on a very narrow subject might normally be something that would be expected to fall within the scope of s.14(1), even more so when the information is routinely published on the Council’s website.

Another part of the Commissioner’s decision that is of interest is what the Commissioner had to say at paragraph 42 of the Decision Notice which stated:

The council is at risk of misleading itself in regarding the complainant as vexatious and going on to conclude that therefore his information requests are vexatious

The FOIA talks about a request as being vexatious and not a requestor and this is confirmed through a long line of decisions from the Commissioner and Tribunal.  A requestor’s previous contact with a public authority can be considered, but only in determining that the request is vexatious.  This is a very real danger for all public authorities when they are dealing with information requests from people who they have regular contact with.

The Commissioner also considered Thackeray v Information Commissioner and said “that the complainant’s dogged pursuit of a line of enquiry should not be lightly characterised as an obsessive campaign of harassment.”

There is a fine line between presistently enquiring into something and harassing the authority.  This is an important distinction because if it does not exist someone investigating something which the public interest clearly demands the continued investigation of then they would be hindered as their requests would become vexatious and this would give the public authority an absolute way of avoiding embarrassing or damaging matters from being investigated.

The Commissioner’s decision in this case seems to be, to me anyway, an interesting one.  I’m not prepared in this case to say whether I agree or disagree with the Commissioner’s decision as I’m not aware of the full facts.  Clearly the ICO has seen something in this case that sets it apart from other similar cases.  Perhaps the complainant’s lack of IT skills and access had something to do with it, perhaps there is something in the submissions which means it wouldn’t be in the public interest for the Commissioner to find that the request was vexatious.  There is no public interest test built into s.14 of the FOIA, but the case law in this area does certainly suggest that public interest considerations have been taken into account when defining the scope of s.14.

I’m not going to criticise Leicester City Council over this case as I have only the Commissioner’s decision to consider.  However, it will be interesting to see whether the Council appeals this decision to the Tribunal.