House of Commons - Post-legislative scrutiny of the Freedom of Information Act 2000

Post-legislative scrutiny of the Freedom of Information Act 2000 - Justice Committee Contents

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.

Vexatious requests

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."[254] This is an objective test and does not include a public interest element.[255] 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.[256]

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."[257]

VEXATIOUS REQUESTS-EVIDENCE FROM OUR WITNESSES

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 of staff."[258] 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."[259] 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 [...][260]

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.[261]

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.[262]

Mr Preston suggested clearer guidance may assist those authorities struggling to apply the exemption rather than an amendment to the legislative scheme.[263] 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 [...]"[264] 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."[265] 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.[266]

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."[267]

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.[268]

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."[269]

130. One suggestion made to us was that public authorities should be able to deem the requestor vexatious rather than simply the individual request.[270] 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."[271]

FRIVOLOUS REQUESTS

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."[272] 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."[273] 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.[274]

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.[275]

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.[276] 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 of things.[277]

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.[278]

134. The Information Commissioner suggested to us that:

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.[279]

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.

INAPPROPRIATE REQUESTS

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.[280]

The attitude of requestors

137. The frivolous or "irresponsible"[281] 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.[282]

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.[283] 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"[284] 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.[285]

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

255 Ibid, p6 Back

256 Ibid. The case was Betts v Information Commissioner EA/2007/0109 (19 May 2008). Back

257 Section 14(2) Back

258 Ev w53 Back

259 Ev 192 Back

260 Ev w76 Back

261 Q 133 Back

262 Q 463 Back

263 Ibid. Back

264 Ev 120 Back