In some cases, you may believe that several different requesters are acting together as part of a campaign to disrupt your organisation by the sheer weight of FOIA requests they are submitting. Then, you can take this into account when determining whether any of those requests are vexatious.
Dr Gary Duke vs ICO and the University of Salford, (EA/2011/0060, 26 July 2011) concerned a case where the appellant had made 13 requests for information to the university in November 2009, following his dismissal from the post of part-time lecturer.
The university had seen a significant increase in the rate and number of freedom of information requests it received from October 2009 to February 2010. It noted that these were similar in subject matter to the appellant’s requests. It had also observed that these originated from a comparatively small number of individuals who it believed to have connections to Dr Duke.
The university therefore refused Dr Duke’s requests as vexatious on the grounds that they were part of a deliberate campaign to disrupt the institution’s activities.
The Tribunal unanimously rejected Dr Duke’s appeal, commenting that:
“The Tribunal had no difficulty in concluding that the Appellant had, together with others, mounted a campaign in the stream of requests for information that amounted to an abuse of the process.
Those requests originated from a comparatively small number of individuals and the Tribunal finds that the University and the ICO were correct to conclude that the requesters had connections with the Appellant who was a former member of staff who had recently been dismissed. It is a fair characterisation that this was a concerted attempt to disrupt the University's activities by a group of activists undertaking a campaign.” (paragraphs 47 and 50).
You need to have sufficient evidence to substantiate any claim of a link between the requests before you can go on to consider whether section 14(1) applies on these grounds. Some examples of the types of evidence that could support your case are:
- the requests are identical or very similar;
- you have received email correspondence in which other requesters have been copied in or mentioned;
- there is an unusual pattern of requests, for example a large number have been submitted within a relatively short space of time; or
- a group’s website makes an explicit reference to a campaign against your authority.
In Scott vs IC and Kirby Muxloe Parish Council EA/2018/0054 10 October 2018, the Tribunal considered a request made to the parish council by the appellant, a solicitor. The appellant had previously acted on behalf of parishioners in disputes with the parish council. His request was on related matters. A small number of parishioners, including his clients, had made a total of 49 requests on similar matters between 2014 and 2017. A number of those requests had been refused under section 14, decisions later upheld following complaints to the ICO.
The appellant’s request referred to an earlier letter of his which appeared to be written in his professional capacity and in which he did refer, if not by name, to parishioners who were his clients. This initially led the council to think his request was made on behalf of such clients. At the Tribunal two of the parishioners gave evidence to support the appellant’s contention that his request had a serious value.
Although the Tribunal accepted the appellant was not acting professionally on behalf of the parishioners, it was satisfied that he was acting in concert with them, finding at paragraph 48 that:
“ …, we cannot avoid the fact that the Appellant’s request in his own name continue[s] the theme of a number of requests by other parishioners with whom he has worked closely and/or acted as a solicitor in the past, and concern broadly the same subject matter as these other requests which have been held to be vexatious by the Commissioner”.
Although it was not evidence available to the council when initially refusing the request, the Tribunal also found that:
“The support given by [the two parishioners] to the current appeal underlines the link between them and the Appellant, especially as their witness statements rehearse much of the background of the dispute between the small group of parishioners and the Council.”
Given the subject of the request, the Tribunal found it should have been dealt with under the Environmental Information Regulations and refused under regulation 12(4)(b) – manifestly unreasonable; the equivalent to s14(1) in such situations. Despite the different access regime, the rationale for finding the requester was acting in concert with others is relevant to the application of section 14(1).
You must differentiate between cases where the requesters are abusing their information rights to engage in a campaign of disruption, and those where the requesters are using FOIA as a channel to obtain information that will assist their campaign.
If the requests are motivated by a genuine desire to gather information about an underlying issue, section 14(1) may still apply. This is if the aggregated burden of dealing with all the requests has become disproportionate to their value.
However, it is important to recognise that campaigns are not in themselves vexatious. The existence of a campaign may be the result of a legitimate public concern about an issue and so reflect a weighty public interest in the disclosure of the information.
It is also important to bear in mind that sometimes a large number of individuals will independently ask for information on the same subject because an issue is of media or local interest. You should therefore rule this explanation out before arriving at the conclusion that the requesters are acting in concert or as part of a campaign.
If you do conclude that the requests are vexatious, then you should issue refusal notices in the normal manner. It is also useful to record your grounds for concluding the request was part of a campaign, in case a complaint is later made to the ICO. See 'What will the ICO expect from an authority?'.