When considering the amount of work that would be involved in dealing with a request and whether it would impose an unreasonable burden, you need to take account of the level of resources that your organisation has at its disposal. For example, a small public authority, such as parish council, only has very limited resources because a parish clerk may be employed for just a few hours a week. Therefore, the threshold at which the burden becomes grossly oppressive is lower than for a larger public authority.
If you are a larger public authority, it is not sufficient to argue that a request is burdensome because you have only allocated a small number of officers to handle requests.
In Cabinet Office vs Information Commissioner and Ashton  UKUT 208 (AAC) – 21 June 2018 the requested information consisted of the Prime Minister’s Office’s files on the UK’s relations with Libya from 1998 to 2011. At the Upper Tribunal the Cabinet Office argued that it only had a limited number of officers with the requisite experience to consider the sensitivity of the requested information and that the disruption caused by taking those officers away from their main roles rendered the request vexatious.
The ICO opposed this ground countering that, “to the extent that the Cabinet Office seeks to contend 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”, observing that, “the same is true for the majority of public authorities, and recognition of any such entitlement would deprive the right to information under section 1 FOIA of much of its effectiveness.”
The Upper Tribunal accepted the ICO’s position (see paragraph 50 and 51).
The Upper Tribunal in Dransfield advised that when assessing burden the following factors are relevant considerations:
- duration; and
It is common for a potentially vexatious request to be the latest in a series of requests submitted by an individual. The greater the number of requests received, the more likely it is that the latest request is vexatious. This is because the collective burden of dealing with the previous requests, combined with the burden imposed by the latest request, may mean a tipping point has been reached, rendering the latest request vexatious.
However, simply counting up the number of previous requests will not reveal the full story. You also have to take into account how you dealt with those requests. It would mitigate against the latest request being vexatious, if you have dealt with previous requests:
- by not responding at all; or
- by providing conflicting or confusing responses which needed further requests for clarification.
If the ICO later receives a complaint, we will expect you to properly explain how you handled the previous requests when justifying how they support your application of section 14(1). See 'How does the ICO handle complaints?'.
You may become overwhelmed, if numerous requests are made in quick succession. This includes where similar requests are submitted before you’ve had the opportunity to respond to previous ones. As the Upper Tribunal in Dransfield said:
“A requester who consistently submits multiple FOIA requests or associated correspondence within days of each other, or relentlessly bombards the public authority with e-mail traffic, is more likely to be found to have made a vexatious request” (paragraph 32).
The duration over which previous requests have been made may also be telling. Where requests have been submitted over a long period, possibly years, this may indicate that requests will continue to be made in the future. Therefore, even if the latest request appears entirely reasonable, when viewed in isolation, you may take into account the anticipated burden of those future requests when assessing burden.
The Upper Tribunal in Dransfield commented that in the absence of any other factors that indicate a request is vexatious, a single well-focussed request is less likely to be vexatious. But it does not necessarily follow that a broader request will impose a greater burden.
Nevertheless there can, occasionally, be situations where a single request taken in isolation, imposes a “grossly oppressive burden”. This is due to the breadth of information sought that it is vexatious when weighed against its value or purpose. However, refusing it under section 14, may alienate the requester and simply lead to a complaint to the Commissioner. Where the burden such a request imposes is the sole ground for considering it vexatious, there are opportunities to deal with it more constructively. These are discussed later under 'How do we deal with a single burdensome request?'.
However, in most cases burden is only one of the factors that contributes to a request being vexatious.
Generally when handling requests under FOIA, the motive of the requester has no bearing on how you handle their request. However, it is relevant when you consider whether the request is vexatious under section 14(1).
As discussed earlier, some requests are clearly vexatious. For example, if a single request is made using offensive language. The motive is to attack the public authority rather than being a genuine attempt to obtain information. There is a clear link here between motive and the harassment of staff.
However, in other cases you may only be able to work out the motive of the requester by referring to your previous interactions with them.
When considered in the context of the full series of requests, it may become apparent that the requester has, gradually, strayed some distance from the purpose of their original request. The Upper Tribunal in Dransfield referred to this as “vexatiousness by drift”.
In Peter Shaw vs IC and Arts Council England EA/2019/0304 9 April 2020 the requester had been in correspondence with the Arts Council (and other bodies) for 15 months over the authenticity of a painting that had been accepted in lieu of inheritance tax.
Neither the Arts Council, nor the other bodies had agreed with the requester’s concerns and declined to carry out the sort of investigation the requester thought necessary. The matter of the painting’s authenticity had been exhaustively considered. Nevertheless the requester persisted with his concerns and the Arts Council argued that each response it provided simply lead to further requests.
The request that was ultimately refused under section 14(1) did not relate to the core issue of the authenticity of the painting, but was for all the information generated as a result of his emails on that subject. The Tribunal found at paragraph 49 that:
“In our view this is the kind of case referred to by the [Upper Tribunal]at paragraph 38 of Dransfield where “…the weight to be attached to th[e] value or serious purpose may diminish over time’. It is a case where ‘…the underlying grievance has been exhaustively considered and addressed’ and where ‘subsequent requests (especially where there is “vexatiousness by drift”) may not have a continuing justification’. This is a case where, in our view, there is indeed ‘vexatiousness by drift’, as the Appellant moves from his original concern to the way his correspondence has been dealt with. In our view there is little public interest in this secondary issue.”
This decision was based on the facts of the case and you should not take it to mean that you can refuse as vexatious all requests about a request (sometimes referred to as meta requests) .
The example above demonstrates that where the requester has drifted away from their original reason for seeking information, there may come a point where the latest request has no, or a much reduced, value in meeting the original aim of the requester.
However, it is important to recognise that there can be legitimate reasons why the information targeted by a requester may change. For example, the responses to earlier requests may alert them to information which they were previously unaware about. Alternatively, they may be pursuing a particular line of enquiry and using the response to one request to establish the facts on which they base a subsequent request. This pattern of request making can often be adopted by journalists pursuing various leads in order to build up a complete picture of a particular event.
As well as unacceptable language, a request or series of requests, which make unsubstantiated allegations of criminal behaviour or wrong doing can be vexatious. Again, it is also possible that a request phrased in such terms will lack any serious purpose. Its intention being to cause offence, vent anger or otherwise attack the public authority, rather than access information.
In Oxford Phoenix Innovation Ltd vs The Information Commissioner & The Medicines and Healthcare Products Regulatory Agency  UKUT 192 (AAC) 11 June 2018 the requester had complained to the MHRA about the marketing of a rival clinical device to the one he had invented. When told that the file of the subsequent investigation into his complaint was no longer held he submitted three further multi-part requests.
The MHRA argued that over the course of his correspondence the requester had, amongst other things, likened their treatment of him to war crimes. It was also argued that he had made other unsubstantiated accusations of criminality and corruption against MHRA staff.
The Upper Tribunal upheld the First-tier Tribunal’s decision that the request was vexatious.
Where the requester pursues personal grudges by targeting their correspondence towards a particular employee or office holder, this again may be evidence that their request is likely to harass staff.
A requester may seek information which you know they already possess. This may indicate their intention is simply to cause annoyance as a means of venting their anger at a particular decision. Such requests demonstrate a link between serious purpose, motive and harassment.
Other indications that the request is vexatious, may be if the requester demonstrates intransigence by:
- taking an unreasonably entrenched position;
- rejecting advice and attempts to assist out of hand; and
- showing no willingness to engage with you.
Such behaviour may also undermine a requester’s arguments that their request is a serious attempt to access information which will be of use to them.
We also recognise that a request which is the latest in a series demonstrating obsessive behaviour can have the effect of harassing staff due to the collective burden they place on staff.
In Rod Cooke vs IC EA/2018/0028 23 July 2018 the Tribunal considered requests made to Kirby Cane and Ellingham Parish Council regarding a dispute over the ownership of a certain piece of land.
The Tribunal was satisfied that the requests had a serious purpose and:
“that transparency in the operation of parish councils is an important principle in the public interest, as is ensuring that such councils operate within the law. ….. However, ….., this is a long-running matter which has already been considered in detail between the parties over a number of years.” (paragraph 24).
Although responding to the latest requests would not have imposed a significant burden on the parish council, the Tribunal took account of volume of correspondence generated between 2014 and October 2017 on this issue. The parish council claimed this included 215 emails from the appellant. Dealing with this level of correspondence took five hours a month. This may not on the face of it seem a great deal, however that burden fell on one part-time parish clerk and a small number of parish councillors. Therefore when considering the burden imposed by the requests the Tribunal found that:
“Taking into account the history of this matter, including the small size of the Council which is run by part-time volunteers, we find that a significant burden would be imposed on the public authority by the requests”. (paragraph 20)
And when looking at any harassment or distress caused to the parish council the Tribunal stated that:
“We do not find that the appellant has deliberately harassed or caused distress to the Council members or clerk. Nonetheless, we note that there has been a considerable volume of correspondence over a number of years directed at a single issue. In the context of a small council run by volunteers and a part time clerk, we find that the burden of dealing with this matter would potentially cause a feeling of harassment and distress to the individuals involved.” (paragraph 26).
This again demonstrates how the four broad themes from Dransfield are often interlinked. As well as demonstrating the need to take a holistic approach and account of the overall resources available to a public authority when considering the impact of a request.
This decision contrasts with the situation in Cabinet Office vs Information Commissioner and Ashton  UKUT 208 (AAC) where the Upper Tribunal considered the resources available to a much larger public authority.