5 Vexatious requests (section 14) and
types of requestors |
122. Two complaints were made about the operation
of the Act in relation to requestors. The first was that the test
in section 14 which allows a public authority to refuse vexatious
or repeated requests for information was too high, and, in addition,
did not allow the refusal of frivolous requests. The second was
that right to access information under the Act was being 'abused'
because it was used by journalists, businesses seeking a commercial
advantage and individuals seeking purely private advantage. We
will consider these complaints in turn.
123. Section 14 allows public authorities to
refuse a request where it is "vexatious". The Information
Commissioner's guidance states that "there is no rigid test
or definition" of vexatious, the key question being whether
"the request is likely to cause distress, disruption or irritation,
without any proper or justified cause."
This is an objective test and does not include a public interest
element. The ICO's
guidance notes that the Information Tribunal held that the context
of the request may be relevant to whether it is vexatious or not;
while the request may be innocuous in itself, previous experience
of the requestor may mean that the request constitutes:
[...] a continuation of a pattern of behaviour and
part of an ongoing campaign to pressure the council. The request
on its own may have been simple, but experience showed it was
very likely to lead to further correspondence, requests and complaints.
Given the wider context and history, the request was harassing,
likely to impose a significant burden, and obsessive.
124. Section 14(2) provides that public authorities
may refuse repeated requests for the same information or substantially
similar information "unless a reasonable interval has elapsed
between compliance with the previous request and the making of
the current request."
VEXATIOUS REQUESTS-EVIDENCE FROM
125. A number of witnesses from public authorities
said that vexatious requests presented a problem for them. The
Lancashire Care NHS Trust told us it had had to "respond
to a number of vexatious or serial requests where there is clearly
an obsession with a certain matter and the requester is not to
be satisfied. On several occasions such requesters become openly
aggressive in their requests and seek to harass individual members
Kent County Council had found that "The Act has become an
additional weapon in the arsenal of the vexatious and repeat complainers
who having exhausted the complaints process, then use FOIA as
an alternative route of communications into the authority."
Oxford University said the overall number of FOI requests it received
obscured the fact that:
[...] most of the resource expended on FOI requests
is likely to arise from a relatively small number of complex requests
from individuals using the FOIA to pursue a personal or political
agenda. The individuals concerned often have a grievance against
the institution and are using the FOIA as a means of retaliating
against those they feel have wronged them [...]
126. From the evidence submitted to us it appears
that universities may have a particular problem with a series
of requests designed to disrupt or intimidate researchers. Dr
Eastwood, appearing before us on behalf of the Russell Group,
told us that a researcher who had published results which queried
the findings of a study carried out in the USA was then the target
of a series of FOI requests, among other harassment, which led
to her declining "to accept membership of a US peer review
group that was being set up by the US Government to look at funding
for this work" to avoid further harassment.
127. Glenn Preston, of the Ministry of Justice,
said that 3% of requests refused under the exemptions in the Act
were denied because they were vexatious. He told us:
In some of the evidence that was gathered for us
to supplement the memorandum that we submitted there was some
indication that people found it quite a hard exemption to apply.
That is because, despite the fact that the Act provides for us
to be able to do this, it does not define what we mean by "vexatious".
That relies on guidance or decisions that are made by the Commissioner
or the tribunal. There has been some quite helpful guidance that
has been produced by the Commissioner in particular on this.
Mr Preston suggested clearer guidance may assist
those authorities struggling to apply the exemption rather than
an amendment to the legislative scheme.
Universities UK agreed: "the definition of vexatious is so
unclear that [universities] are deterred from seeking to use this
exemption. Further guidance, particularly around what constitutes
a vexatious request and how frivolous, time-wasting requests should
be handled, would be welcomed [...]"
Dr Eastwood said: "The reports that we receive from universities
are that the system of proving that something is a vexatious claim
is almost more arduous than responding to it in the first place.
There are elements that need modernising and looking at, and clarification
is the key."
The Memorandum notes that complying with a vexatious request can
prove cheaper than refusing it under section 14 because the requestor
will almost inevitably apply for an internal review.
128. Deputy Information Commissioner, Graham
Smith, urged authorities to use the vexatious exemption rather
than simply answer a request which falls into that category because
it is straightforward and they perceive it as a "quick win
[...]. That will stop them building up a convincing case of vexatious
behaviour, which is why I say they do not necessarily help themselves
in that respect."
129. Graham Smith thought it unlikely that a
requirement that requestors identify themselves would make much
difference to public authorities trying to cope with a person
who repeatedly made vexatious requests:
[...] there is not a lot of evidence that vexatious
requests are being made by people using pseudonyms or disguising
their true identity. If they are, it is often fairly obvious.
Public authorities who believe that they are experiencing this
sort of behaviour go to some lengths to identify whether there
is a pattern of behaviour or whether people are working in concert
in a way that they feel is disrupting their business.
Julian Brookes, of NHS South of England said: "we
have a number of individuals who are persistent FOI-ers. Quite
often they will change their email address. They will change the
name of the organisation that they have created to ask their question."
130. One suggestion made to us was that public
authorities should be able to deem the requestor vexatious rather
than simply the individual request.
Inevitably such an approach runs into the problem highlighted
above in our examination of the costs of the freedom of information
regime, that there appears to be no straightforward way to ensure
requestors use their own identities when making requests. Maurice
Frankel explained to us another difficulty with this approach,
and the rationale behind making the request not the requestor
vexatious in the first place:
[...] you sometimes find that someone goes off on
a very time-consuming repeated tangent but then makes an entirely
different request, sometimes about something that directly affects
them and that has validity. You will then see the Information
Commissioner saying about those requests, "I uphold the authority
in finding most of them vexatious, but this request is entirely
different. The person has a serious purpose, and it is not going
to take up a massive amount of time, so you should deal with it."
131. Witnesses representing public authorities
said they had received requests relating to supernatural matters.
Leeds City Council said it had received "a number of requests
about ghost sightings and paranormal activity in its buildings."
Roger Smethurst, of the Cabinet Office, said the Department had
received a question about zombies, which, while it managed to
deal with it quickly, still required the official concerned to
"make sure that the part of the Cabinet Office that deals
with contingencies does not actually have anything."
The Department had also to respond to a request about a number
on a piece of paper which the requestor refused to believe was
simply part of a stationery order:
This was something that appeared on a number of things
he had seen released previously, which is something printed on
the bottom of a page. He wanted to know what this meant. Again,
it went to internal review because he did not believe us to start
with. We had to find some examples of clear ones at the bottom
of the stationery cupboard to clear that one up.
132. Alex Skene, of WhatDoTheyKnow, suggested
that even questions referring to paranormal matters could have
a public interest element by revealing areas of public spending
some may consider inappropriate:
[...] there are cases where such requests have exposed
public spending. For instance, the MoD spent a lot of time collecting
information about UFOs. It could be very hard to draw the line
on what is frivolous and what is not. Some local authorities have
even paid for exorcisms [...]. You could almost extend it to things
like homeopathy, which is believed by many people to work.
133. Maurice Frankel described questions about
the paranormal as "idiotic" but agreed with Roger Smethurst
that they were generally quick to answer and presented limited
problems for public authorities.
Glenn Preston, of the Ministry of Justice, said:
[...] it will be interesting for us to know whether
the Committee thinks we could do better at defining what is meant
by a vexatious request or a frivolous request. That need not necessarily
be in legislation; it may well be that the guidance can just be
clearer than it is at the moment. That is something on which we
would welcome the Committee's opinion. I do not think we should
overstate the problem here. It is pretty minor in the grand scheme
Alexandra Runswick of Unlock Democracy thought that
the wording of a new exemption for frivolous requests would be
difficult to formulate sufficiently tightly that legitimate requests
would not be affected:
What may seem frivolous could be part of a genuine
research project. For example, the Local Government Association
recently published a list of what it considered to be unusual
FOI requests, one of which was to Scarborough Borough Council
about the number of cheques that it had received and issued. I
can see that that could be a difficult question for the authority
to answer, but, at the same time when banks are talking about
stopping issuing cheques, I can also see that it would be a legitimate
question for a variety of campaigning organisations.
134. The Information Commissioner suggested to
I, as Commissioner, am able to turn away business
because it is either vexatious or frivolous, but a public authority
does not have that power; it is only able to deal with vexatious.
I think you could add frivolous. The requester might then appeal
to the Commissioner, saying, "But that wasn't frivolous at
all." Most of the time, they would not do that, because there
is a fair amount of frivolity; if you turn it away at the first
point, then probably it will go away.
135. It is apparent from witnesses
that frivolous requests are a very small problem, but can be frustrating.
There is a case for adding frivolous requests to the existing
category of vexatious requests which can be refused, but such
requests can usually be dealt with relatively easily, making it
hard to justify a change in the law.
136. The Liverpool Heart and Chest Hospital told
us that it frequently received requests for information that were
inappropriate for the organisation.
A large amount of requests received are completely
inappropriate for our organisation as a Heart and Chest Hospital.
Often requests are received by 'round robin' emails which relate
to services obviously not provided by the Trust e.g. obstetrics,
gynae and maternity. It would be beneficial to remove the requirement
to acknowledge receipt of such inappropriate requests and the
requirement to confirm or deny if information is held.
The attitude of
137. The frivolous or "irresponsible"
use of the Act may be connected to limited knowledge of the cost
of responding to requests. We heard evidence that requestors had
little or no knowledge as to the cost of responding to their applications.
Maurice Frankel explained to us that, for a request or to understand
why an application may be turned down on cost grounds meant that:
[...] the requester has, in a sense, to try to understand
how the records are kept and in what form, and how easy it is
for the authority to obtain the information they have asked for.
It is quite easy to make what you think is a very simple request,
but if it involves a lot of people in different offices going
through different files, some of which are not indexed, it will
mean that you will not get any information at all; but there is
no way for you to know that before you make your request.
138. We believe it would be
helpful for public authorities to indicate in a response letter
how much responding to the request has cost, in approximate terms.
We recommend the Information Commissioner consider the easiest
way for authorities to arrive at such a figure. We think this
unlikely to deter genuine inquiries but it will at least highlight
to irresponsible users of the Act the impact of their actions.
139. One witness suggested that a well-publicised
Code of Practice for requestors, which could be taken into account
if the Information Commissioner had to decide if an application
was vexatious, could assist in educating users of the Act.
Such a Code could also inform requestors how to limit their inquiry
to the information desired, meaning the numbers of requests consisting
of "19 page questionnaires [usually from students] [...]"
from which public authorities have the task of "trying to
isolate what they are asking for"
would be reduced.
140. Tracey Phillips told us that trying to focus
requests which would otherwise breach the fees limit could be
difficult. While Lambeth Council:
[...] go back to the requester and ask if they can
narrow their request or specify what they are asking for to help
us facilitate the search [...]. We [then] get responses from the
requester saying, "I have asked for x. Just give me x."
They specifically ask for a dataset or a file on this and we say,
"Can you narrow that down to help facilitate our search?"
Especially to envisage reading it, they are quite unhelpful.
Reference to an official Code of Practice would assist
public authorities in these circumstances.
254 Information Commissioner's Office, When
can a request be considered vexatious or repeated? December
2008, p2-3 Back
Ibid, p6 Back
Ibid. The case was Betts v Information Commissioner
EA/2007/0109 (19 May 2008). Back
Section 14(2) Back
Ev w53 Back
Ev 192 Back
Ev w76 Back
Q 133 Back
Q 463 Back
Ev 120 Back
Q 131 Back
Memo, p25 Back
Q 214 Back
Q 294 Back
Ev w233 Back
Q 15 Back
Ev 146 Back
Q 463 Back
Qq 16-17 Back
Q 15 Back
Q 463 Back
Q 16 Back
Q 213 Back
Ev 134 Back
Ev w47 Back
Q 8 Back
Ev w47 Back
Q 463 Back
Qq 415-416 Back