In the case of Coggins vs ICO (EA/2007/0130, 13 May 2008), the Tribunal found that a “significant administrative burden” (paragraph 28) was caused by the complainant’s correspondence with the public authority which started in March 2005 and continued until the public authority cited section 14 in May 2007. The complainant’s contact with the public authority ran to 20 FOIA requests, 73 letters and 17 postcards.
The Tribunal said this contact was:
“…long, detailed and overlapping in the sense that he wrote on the same matters to a number of different officers, repeating requests before a response to the preceding one was received….the Tribunal was of the view that dealing with this correspondence would have been a significant distraction from its core functions…” (paragraph 28).
Lack of value and purpose of the request (reopening issues that have been conclusively resolved) and motive
In the case of Ahilathirunayagam vs ICO & London Metropolitan University (EA/2006/0070, 20 June 2007), the complainant had been in correspondence with the London Metropolitan University since 1992 as a result of him not being awarded a law degree. The complainant exhausted the University’s appeal procedure, complained to the Commissioner, instructed two firms of solicitors to correspond with the university, and unsuccessfully issued County Court proceedings. He also complained to his MP and to the Lord Chancellor’s Department.
In February 2005, the complainant made an FOI request for information on the same issue. The university cited section 14.
The Tribunal found the request to be vexatious by taking into account the following matters:
“…(ii) The fact that several of the questions purported to seek information which the Appellant clearly already possessed and the detailed content of which had previously been debated with the University
(iii) The tendentious language adopted in several of the questions demonstrating that the Appellant’s purpose was to argue and even harangue the University and certain of its employees and not really to obtain information that he did not already possess
(iv) The background history between the Appellant and the University…and the fact that the request, viewed as a whole, appeared to us to be intended simply to reopen issues which had been disputed several times before…” (paragraph 32).
In the case of Welsh vs ICO (EA/2007/0088, 16 April 2008), the complainant attended his GP with a swollen lip. A month later, he saw a different doctor who diagnosed skin cancer. Mr Welsh believed the first doctor should have recognised the skin cancer and subsequently made a number of complaints although these were not upheld by the practice’s own internal investigation, the GMC, the Primary Care Trust or the Healthcare Commission.
Nonetheless, the complainant addressed a 4 page letter to the GP’s practice, headed “FOIA 2000 & DPA 1998 & European Court of Human Rights” which contained one FOI request to know whether the first doctor had received training on face cancer recognition. The GP cited section14.
The Tribunal said:
“…Mr Welsh simply ignores the results of 3 separate clinical investigations into his allegation. He advances no medical evidence of his own to challenge their findings…..that unwillingness to accept or engage with contrary evidence is an indicator of someone obsessed with his particular viewpoint, to the exclusion of any other…it is the persistence of Mr Welsh’s complaints, in the teeth of the findings of independent and external investigations, that makes this request, against that background and context, vexatious….” (paragraphs 24 and25).
In the case of Hossack vs ICO and the Department of Work and Pensions (EA/2007/0024, 18 December 2007), the DWP had inadvertently revealed to the complainant’s wife that he was in receipt of benefits in breach of the Data Protection Act. The DWP initially suggested they were unable to identify the employee who committed the breach although they later were able to identify the individual.
The DWP went onto accept responsibility for the breach, apologised and paid compensation. But, Mr Hossack twice complained to the Parliamentary Commissioner for Administration whose recommendations the DWP accepted and acted upon.
However, Mr Hossack continued to believe that the DWP’s initial misleading reply justified his campaign to prove a cover-up at the DWP. He accused the DWP staff of fraud and corruption and he publicised his allegations by setting up his own website and towing a trailer with posters detailing his allegations around the town.
The Tribunal said:
“….whatever cause or justification Mr Hossack may have had for his campaign initially, cannot begin to justify pursuing it to the lengths he has now gone to. To continue the campaign beyond the Ombudsman’s second report….is completely unjustified and disproportionate” (paragraph 26) and “…seen in context, we have no hesitation in declaring Mr Hossack’s request, vexatious” (paragraph 27).
In Betts vs ICO (EA/2007/0109, 19 May 2008) the complainant’s car was damaged in 2004 by what he argued was an inadequately maintained council road. He stated that the council were responsible and as such should refund the £99.87 charge for the car repair. The council stated that they had taken all reasonable care to ensure the road was not dangerous to traffic.
The complainant sent a number of letters and emails seeking inspection records, policies and assessments. The council provided this information under FOIA. But, when in January 2007 the complainant made a further request for information on health and safety policies and procedures, the council claimed section 14.
The majority Tribunal found section 14 was engaged and commented:
“…the Appellant’s refusal to let the matter drop and the dogged persistence with which he pursued his requests, despite disclosure by the council and explanations as to its practices, indicated that the latter part of the request was part of an obsession. The Tribunal accepted that in early 2005 the Appellant could not be criticised for seeking the information that he did. Two years on, however, and the public interest in openness had been outweighed by the drain on resources and diversion from necessary public functions that were a result of his repeated requests…” (paragraph 38).
In Dadswell vs ICO, (EA/2012/0033 29 May 2012), the complainant had written an 11 page letter to a local authority which comprised of 122 separate questions, 93 of which were directed at a specific member of staff. The Tribunal struck out the complainant’s appeal, commenting that:
“…A single request comprising 122 separate questions – 93 of which were aimed at one named member of staff and 29 of which were directed at another named member of staff – inevitably creates a significant burden in terms of expense and distraction and raises issues in relation to be vexatious…” (paragraph 18).
”…anyone being required to answer a series of 93 questions of an interrogatory nature is likely to feel harassed by the sheer volume of what is requested…The Appellant may not like being characterised as vexatious but that has been the effect of the way in which he has sought information from the Metropolitan District Council...” (paragraphs 20 and 21).
In the case of Poulton and Ann Wheelwright vs ICO, (EA/2011/0302, EA/2012/0059, & EA/2012/0060, 8 August 2012) the complainants had made three requests for information relating to a dispute with the council over planning issues and the properties owned by Mr Poulton. The council estimated that it would cost in excess of £1300 to search the records for this information.
This dispute in question spanned 20 years, during which time Mr Poluton had made allegations of “serious irregularities” in the planning department. He pursued the matter through independent bodies such as the courts, the Local Government Ombudsman, the police, and the Valuation Tribunal’s Service. The Information Tribunal unanimously rejected the complainant’s appeals, commenting that:
“…Viewed in the round it is clear that these applications for information are part of a relentless challenge to the council which has gone on for many years, at great expense and disruption to the council, some distress to its staff, with negligible tangible results and little prospect of ever attaining them. It is simply pointless and a waste. It is manifestly unreasonable for a citizen to use information legislation in this way.” (paragraph 18).
In Thackeray vs ICO, (EA/2011/0082 18 May 2012),the complainant had made a number of requests to the City of London Corporation (COLC) concerning its dealings with scientology organisations. These mainly centred around COLC’s decision to award mandatory rate relief to the Church of Scientology Religious Education College.
Often these requests would follow on closely from each other or be refined versions of previous requests. COLC refused two of the later requests, citing in one refusal notice that this was on the grounds that the request was obsessive, harassing the authority and imposing a significant burden. However, the Tribunal unanimously upheld the complainant’s appeal and observed that:
“…The dogged pursuit of an investigation should not lightly be characterised as an obsessive campaign of harassment. It is inevitable that, in some circumstances, information disclosed in response to one request will generate a further request, designed to pursue a particular aspect of the matter in which the requester in interested…We would not like to see section 14 being used to prevent a requester, who has submitted a general request, then narrowing the focus of a second request in order to pursue a particular line of enquiry suggested by the disclosure made under the first request” (paragraph 26).
In the case of Marsh vs ICO (EA/2012/0064, 1 October 2012) the appellant had asked Southwark council for information about the outcome of a review into the methodology for an increase in court costs. This request followed on from previous enquiries about how court costs were calculated. The council had refused the request as vexatious on the grounds that it was part of a long series of related, overlapping correspondence which was both obsessive and having the effect of harassing the council.
The Tribunal considered the history of Mr Marsh’s contact with the council from his first request about the calculation of court costs in 2006, through to 2008 when the council broke off further discussions and on to 2011 and the refusal of his most recent request. They also took account of an Audit Commission investigation, instigated by Mr Marsh, which had found that there was scope for the council to improve its arrangements for managing court costs and liability orders.
In allowing the appeal they commented that:
“We think it appropriate, and indeed necessary, for us to take into account this evidence because it reinforces our own view…that the Central Enquiry was not vexatious. We have demonstrated…how Mr Marsh pursued a legitimate concern on an issue of some significance, at first with a degree of co-operation from the council and, when that was removed, by dogged, forensic investigation of the information the council provided to him or to the public. It was a campaign that led the council’s own Overview and Security Committee to investigate in 2008 and some of its members to express concern about the way in which cost claims appeared to have been assessed.
There is also some suggestion that, having provided the public with a budgeted £0.5 million increase in costs recovery, which it was then unwilling or unable to justify when challenged by Mr Marsh, it simply refused to engage with him on the subject and issued a refusal notice…The issue under consideration was also a relatively complex one…This provides further justification for different strands of enquiry having been pursued in parallel and investigated in some depth.” (paragraph 30).
In Betts vs ICO, (EA/2007/0109 19 May 2008), the request concerned health and safety policies and risk assessments. There was nothing vexatious in the content of the request itself. However, there had been a dispute between the council and the requester which had resulted in ongoing FOIA requests and persistent correspondence over two years. These continued despite the council’s disclosures and explanations.
Although the latest request was not vexatious in isolation, the Tribunal considered that it was vexatious when viewed in context. It was 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.
In John McGoldrick (obo Mersey Tunnels Users Association) vs Information Commissioner (EA/2017/0103 - 20 Nov 2017) the Tribunal considered a request about certain loans referred to by the Liverpool City Region Combined Authority’s auditors in response to a formal objection to their published accounts.
The request had been refused under section 14(1), but it was accepted by the Tribunal that it was possible that some of the requested information may be environmental information. In which case, those elements of the request should have been considered under the Environmental Information Regulations to determine whether the information was exemption under regulation 12(4)(b) – manifestly unreasonable.
The public authority had argued that the requester had been submitting requests since the right to do so had come into force in 2005 and that since 2015 had made 22 requests, 14 of which had resulted in follow-up requests. The public authority had also relied on other communications, meetings, correspondence and challenges to accounts made by the requester as evidence of the totality of the burden imposed on it. As well as the fact that the requester often submitted comments on the information he had been provided with.
In considering these arguments the Tribunal took into account the role of the Mersey Tunnel Users Association as a
campaign group against tolls, toll increases and the use made of money from the tolls for purposes not relating to the tunnels. It considered the level of scrutiny the public authority could expect in light of the large sums of money involved, the large number of users of the tunnels and multiple issues management of the tunnels raised.
The Tribunal also found that the reasons for many of the follow-up requests for clarification were apparent when viewed in context. For example, the information originally provided may have not have been final figures so the requester sought final figures when these became available. In respect of the requester commenting on the information he had received, the Tribunal found this was simply part of the wider dialogue one could expect of a user group trying to hold the public authority to account.
The Tribunal concluded that the request was not vexatious. To the extent that some of the information might fall under the EIR, the Tribunal found that the request was not manifestly unreasonable under regulation 12(4)(b) for the same reasons.