Freedom of Information – vexatious and costly requests

Responding to requests under the Freedom of Information Act 2000 (“the Act”) may be both time consuming and costly for public authorities to manage. The Act offers procedural exemptions under section 14, relating to repeat and vexatious requests; and section 12, relating to excessive costs. Whilst public authorities have historically been slow to refuse to respond to requests in reliance on either of those exemptions; three cases appealed to the Upper Tribunal (“UT”) last year should assist authorities in considering the appropriate response to those requests made under the Act that cause the greatest burden.

Burdensome as Vexatious

The issue of vexatiousness based on burden alone came before the UT in Cabinet Office v Information Commissioner & Ashton [2018] UKUT 208 (AAC) and it was asked to consider whether a compelling public interest in the disclosure may necessarily trump the burden involved in complying with a request.

The case concerned a request made by Professor Ashton for six Prime Minister’s Office files relating to British relations with Libya between 1990 and 2002. The Cabinet Office formally refused the request on the grounds that it was “vexatious” within section 14(1) of the Act. Reliance was on the burden of the request alone and there was no doubt that the request would have taken some considerable time for the Cabinet Office to review.

The judgment of the UT is helpful in endorsing the view that section 14 can be relied upon in the context of burden alone without any other aspects of vexatiousness being present. The UT concurred with the summary of section 14 principles given in CP v Information Commissioner [2016] UKUT 427 (AAC), making clear that the public interest cannot be used as a trump card to justify the disclosure.

However, the UT decided on the facts in Ashton that in this instance and the particular circumstances of the case were emphasised, the public interest in disclosure did outweigh the burden that would be involved in dealing with the request.

The UT confirmed that as a matter of principle, the ICO was right to oppose the Cabinet Office’s contention that “section 14(1) entitled a public authority to refuse to comply with a request for information on the general basis that it is struggling to meet a large number of obligations with limited resources” (paragraph 50). Public authorities should therefore be careful not to place great reliance on a general absence of resource when applying section 14.

Vexatious by Conduct

Another appeal to consider the section 14 principles was the case of Oxford Phoenix Innovation Ltd v Information Commissioner & Medicines and Healthcare Products Regulatory Agency [2018] UKUT 192 (AAC). The requestor in that case was an inventor of a medical device called the “Whizz Midstream”. He had been in protracted discussions with the Medicines and Healthcare Products Regulatory Agency (MHRA) in relation to issues around competitors’ products and regulatory compliance. He believed that there had been a conspiracy to send him out of business. Having made a number of freedom of information requests to which the MHRA provided a response, three further requests were refused under section 14 on the basis that they were vexatious. The ICO upheld the MHRA’s refusals and the First Tier Tribunal similarly found the requests to be vexatious.

The UT accepted that analytical focus should be on whether a request itself is vexatious rather than on the requestor, but found that the FTT had been correct to take into account the history of dealings between the requestor and the MHRA and the fact that the requestor felt that the MHRA had been “at war” with him.

This is perhaps an unsurprising result, given the nature of the requestor’s conduct and history between the parties. It provides helpful direction in the need to focus on the request itself rather the requestor, whilst acknowledging that there is a need for proper consideration of the history of relations.

Costly requests

The other most commonly used exemption is in respect of costs, in Kirkham v Information Commissioner [2018] UKUT 126 (AAC), the costs exemption provided by section 12 of the Act was considered in detail.

Kirkham had sought information from the University of Cambridge (“Cambridge”). Cambridge had offered to respond to part of one of the limbs of Mr Kirkham’s request but had, in the main, relied on the costs exemption under section 12 in declining to respond to the remainder. Importantly, Cambridge had in fact made an estimate of the costs to be incurred in dealing with the request. Much of Mr Kirkham’s argument involved criticism of the methodology that Cambridge had used in calculating that estimate. The UT was unwilling to accept his more stringent approach, instead advocating the reading of the term ‘estimate’ in line with its ordinary meaning.

This case reflects what has always been good practice; that an authority seeking to rely on section 12 must have made an estimate of the costs involved and that estimate must be reasonable. Satisfaction of this test will be subjective to the authority but with an objective element of reasonableness.

This is a useful case for public authorities considering the appropriate approach to making a reasonable estimate of the costs in complying with a freedom of information request. It also highlights the importance of ensuring such an estimate takes into consideration the authority’s duty to find all information within the scope of the request that was made.

Summary

The balance between the right to information and the management of vexatious requests will no doubt continue to be the subject of litigation. These latest cases make clear that public interest will not always win out and relations between the parties can be considered in assessing whether a request is vexatious.

When it comes to cost, public authorities should ensure that estimates are completed but there is no requirement to ensure they go beyond what would ordinarily be expected of an estimate.

Author: Hannah Payne, Partner at Browne Jacobson LLP. Browne Jacobson are a regional supplier on lot 10 Wales for Legal Services framework

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.