FOIA, FOISA, Freedom of Information, Information Rights, Save FOI, Vexatious Requests

The cost and burden of FOI…again

The Chief Constable of Surrey Police has gone on the offensive against Freedom of Information on Twitter this evening (and the Assistant Chief Constable of Greater Manchester Police joined in).  It follows a predictable pattern where a public authority (and technically the Chief Constable is the public authority – schedule 1 to the FOIA provides that “A chief officer of police of a police force in England or Wales” is a public authority) complains about the cost of FOI and how it impacts upon the delivery of front line services.

It is a well trodden path which has, over the years, generated lots of discussion in information rights circles.  One of the frequent things to be picked up in these discussions is that, while public authorities are complaining about the cost and burden of FOI, they rarely mention any of the benefits.  Those benefits are around openness, transparency and accountability.

FOI, I can imagine, is probably a right pain in the backside to public authorities sometimes; however, just because it’s a royal pain in the backside doesn’t mean that it is of no value.  FOI is about allowing the citizen to set the agenda on the flow of information.  No longer is the flow of information dictated by what public authorities are prepared to release.  Now, if a member of the public wants to know something, they have the right to be given it if the public authority holds it and there is no good reason for not releasing it.

In times of shrinking budgets, FOI might be seen as an expensive luxury.  However, I would argue that in times of shrinking budgets FOI is all the more important.  As budgets shrink, public authorities have to take decisions about how they spend their ever shrinking budget.  That will often mean cuts to some services (or perhaps withdrawing services altogether).  It allows people who are directly affected by those decisions to go to the public authority and obtain the information that forms the basis of those decisions.  It can help them to understand why decisions have been taken and more importantly can better enable them to challenge decisions where they are perceived to be the wrong ones.

When Parliament drafted the FOIA, it didn’t do so without having any consideration as to the burden that this new regime would have on public authorities.  There are a number of provisions within the FOIA which help to control the burden of FOI.

First, there is section 12 of the Act which sets an appropriate limit on the costs of FOI requests.  A public authority is not obliged to comply with a request where the cost of compliance is estimated to excced the appropriate limit.  For a police force in England and Wales, the limit is £450 (indeed, it is £450 for all public authorities except Government departments or Scottish Public Authorities, where it is £600).  This does only covers certain activities and it is possible for requests to cost more than the appropriate limit in practice and not be capable of being refused under section 12.  This will be because the cost is incurred in an activity which cannot be taken into account in any cost calculations for the purposes of determining whether it exceeds the appropriate limit.

Sometimes, these requests will be the ones where the public interest is finely balanced and the authority is having difficulty establishing just where the public interest lies.  Should such requests be refused because of this?  I’d forcefully argue that they should not.  If it was possible to refuse these requests it would actively work against the public interest: the public might not get information which it would be in the public interest for them to have simply because it is going to take a bit of time for the public authority to work out just where the public interest lies.  However, sometimes the additional cost will be because there is a large volume of information to consider.  While, a request that throws up a large volume of information will often end up breaching the “appropriate limit”,  it is sometimes the case that there is a large volume of information held on a particular subject which is actually relatively quick and easy to locate and extract.  What takes the time then is the applying of exemptions and the conduct of the public interest test.  Section 12 isn’t an option in these requests, because the law doesn’t allow for it to apply.  However, this does bring us on to the next provision of the FOIA which is there to prevent the burden from being too great.

Before I look at that, I thought it would worthwhile pointing out that in terms of section 12 the law has provision within it to ensure that it cannot be avoided.  Simply breaking down a large request into a number of different requests will still likely engage the cost limit: public authorities can aggregate requests from the same individual received within a period of 60 consecutive working days which seek similar information.  So, asking for information on a particular subject over a 10 year period broken down into 5 requests each covering a 2 year period will be aggregated together.  All of the requests will be refused if the cost of complying with all of them is estimated to exceed the appropriate limit.  This provision goes further than that though; it’s not possible to get four of your mates to help you make 5 requests for the information over a 2 year period either.  The law provides that where “different persons who appear to the public authority to be acting in concert or in pursuance of a campaign” the public authority can again aggregate the cost and refuse all of the requests if they exceed the appropriate limit.

The second provision designed to help public bodies with the burden of FOI requests is section 14, which deals with both repeated and vexatious requests.  In terms of repeated requests, if a public authority has complied with a request from someone, they do not have to comply with a request from the same person which is for the same (or substantially similar) information unless a reasonable time has elapsed between the requests.

Vexatious requests are a bit more difficult; however, public authorities have been greatly helped by the decision of the Upper Tribunal in Dransfield (although, Mr Dransfield has appealed this decision to the Court of Appeal).  It is important to note that it is the request, not the person making it, which is vexatious. However, previous correspondence between the requester and the public authority can be relevant.  This provision largely allows public authorities to ignore people trying to use FOI to keep open grievances that have been rumbling on for a long time, especially where they have been the subject of complaints and independent scrutiny.  Section 14 also catches those who are making requests simply to annoy the public authority (quite possibly because of a previous complaint).  However, it can also be used to deal with requests where there is an unacceptable burden to the authority; described as “grossly oppressive”.

This is a higher burden than would be applicable in section 12, but it is an option that is open to authorities where requests produce large volumes of information with a lot of potentially exempt information – especially where those exemptions are qualified ones where the PI might be difficult to determine.  However, the ICO does consider it good practice to go back to the requester before claiming section 14 in these situations – and doing so would probably fall within a public authority’s duty to provide advice and assistance.  So, where a request is overly burdensome and section 14 could be claimed instead of section 12, a public authority should probably go back to the requester and try and work with the requester to refine their request.  Although requesters are not required to (and public authorities are generally discouraged from asking), trying to establish the motive and purpose of the request can help.  Engaging with the requester might save a public authority a lot of time in the long run as it becomes clear that only a tiny proportion of the information that has been uncovered is what the requester is after – the public authority gets to consider a much more refined request and avoids the possibility of an Internal Review and ICO complaint over its application of section 14 (and possibly an adverse finding against it, either in respect of its use of section 14 or its failure to provide advice and assistance).

I note that Surrey Police operates a disclosure log on its website, but that it states it only publishes responses which might have wider interest.  Disclosure logs can be a useful tool for public authorities.  There is an exemption for information which is already reasonably accessible to the requester.  Publishing all responses in a disclosure log on a website might enable public authorities to refuse requests under section 21 of the Act.  This is a quick and simple process that shouldn’t take a huge amount of time.  Most of the time will be spent ensuring that the request isn’t seeking additional information which is not already reasonably accessible to the requester.

This is where the WhatDoTheyKnow website comes into its own – all information released to requesters on that website ends up in the public domain automatically.  Just because it’s not actually published on the authorities own website, doesn’t mean it’s not reasonably accessible to the requester and so section 21 can still be used.  One public authority has even worked with WhatDoTheyKnow to utilise the technology behind WhatDoTheyKnow on their own FOI website, undoubtedly reducing the burden of operating a comprehensive disclosure log.

If public authorities notice trends in their requests, it might be worthwhile proactively releasing the information on a regular basis.  Then the exemption at section 22 is available to the public authority because it is information which is intended for future publication.  This exemption is subject to the Public Interest Test, but there will normally need to be compelling reasons for departing from a set date for publication.  Of course, public authorities would need to consider the cost balance here: is it more costly to routinely publish the information than deal with the FOI requests as they come in?  The UK provision on information intended for future publication is much more generous that the Scottish provision, where it only applies in cases where the intended publication is no later than 12 weeks following receipt of the request.

We often see complaints from public authorities about requests which are bizarre in nature, but as Jon Baines has demonstrated, those apparently bizarre requests do sometimes have a justification behind them.  For the ones that don’t, Tim Turner explains that they can be quickly disposed of.

There are, of course, steps that requesters can take to relieve the burden to public authorities and to that extent I commend Paul Gibbons’ guide to making FOI requests, which includes 10 very good tips for requesters.

A fairly long blog post, so if you have reached this point: thank you and well done!

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Useful Links:

ICO guidance on section 12
ICO guidance on section 14
ICO guidance on section 21
ICO guidance on section 22

FOIA, Freedom of Information, Vexatious Requests

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.

FOIA, Freedom of Information, Information Commissioner, Vexatious Requests

IPCC v The Information Commissioner

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).