The key test is to determine whether the request is likely to cause a disproportionate or unjustified level of disruption, irritation or distress. A useful starting point is to assess the value or purpose of the request before you look at the impact handling the request would have on you.
When considering this issue the Upper Tribunal in Dransfield asked itself, “Does the request have a value or serious purpose in terms of there being an objective public interest in the information sought?” (paragraph 38). The public interest can encompass a wide range of values and principles relating to what is in the best interests of society, including, but not limited to:
- holding public authorities to account for their performance;
- understanding their decisions;
- transparency; and
- ensuring justice.
Most requests will have some value and will therefore have a “reasonable foundation”. Requests can also serve a number of interests. Many will be prompted by the personal circumstances of the requester. For example, their wish to challenge a decision directly affecting them. Some requests may only serve the private interests of the requester, but there will often be an overlap between the private interests of the requester and a wider public interest. Other requests may seek information that has no direct bearing on the requester, but is of a wider public interest.
It is clear from the Upper Tribunal’s findings in Dransfield that when considering value and serious purpose we are concerned with assessing whether there is public interest in disclosure. This means that the requester’s private interests in the information carry little weight unless they coincide with a wider public interest.
In many cases the value and purpose of the request is apparent from the:
- nature of the information requested;
- context of the request; or
- history of the requester’s engagement with you.
In other cases it may be less clear what purpose would be served by disclosing the information, but as the Upper Tribunal in Dransfield observed:
“public authorities should be wary of jumping to conclusions about there being a lack of any value or serious purpose behind a request simply because it is not immediately self-evident.”
If the value or purpose of the request is not immediately obvious you may take account of any comments the requester might have made about the purpose behind their request or any evidence they are willing to volunteer. This will help you decide whether there is a public interest in disclosing the information. However FOIA does not require a requester to give their reasons for making a request and you cannot insist they do.
If you initially refuse a request under section 14(1), it is best practice to explain your reasoning in the refusal notice. If your refusal notice questions the value or purpose of the request, the requester will then be able to identify the value of their request, if they seek an internal review. This will help inform your final decision on whether section 14(1) applies. See What do we do once we’ve decided to refuse a request under section 14?.
It is possible that the subject of a request is so non-sensical or trivial that it lacks any serious purpose; having been made for the sole purpose of amusement. Although this is likely to be rare, it indicates that the request is vexatious. It also demonstrates how the broad themes can be interlinked, such as serious purpose and motive.
If the request does have a value or serious purpose, there may be factors that reduce that value. For example, a request may seek greater transparency over the possible failings of a public authority, or a particularly controversial decision. However, if those matters have already been comprehensively investigated and reports of those investigations are in the public domain, the value in disclosing the requested information is diminished. The value may be decreased further if the matter has been the subject of some form of independent scrutiny.
In such cases the requester may be demonstrating unreasonable persistence by seeking to re-open the matter, or their request may have become futile in light of the matter having already been conclusively resolved.
Decision notice FS50324650 concerned a request sent to the Department for International Development (DfID) in April 2010 for information relating to the World Bank Group’s (WBG) trust fund accounts. The requester was an ex-employee of WBG who was pursuing allegations that the organisation had committed fraud.
The requester first brought her allegations to DfID’s attention in 2007, and the DfID’s internal audit team carried out an investigation at the time. However, this found no basis for her claims. The allegations were also reviewed by an independent regulator, the Parliamentary and Health Service Ombudsman, but it elected not to pursue the complaint.
Despite this, the requester continued to raise the matter with DfID, making several FOIA requests between 2007 and 2010.
The requester had a clear belief that fraud had been committed and DfID accepted the request had a serious purpose. However, it also considered the request was a continuation of a campaign on an issue that had already been thoroughly investigated and on which nothing more could be done.
In upholding DfID’s decision that the April 2010 request was vexatious, the ICO found that the requester’s reluctance to accept that no evidence of wrongdoing existed had limited the value and purpose of the request.
Some other practical examples of scenarios where the value of a request might be limited include where the requester:
- argues points rather than asking for new information;
- refuses an offer to refer the matter for independent investigation; or
- continues to challenge you for alleged wrongdoing without any clear and logical basis for doing so.
Once again, this is not intended to be an exhaustive list and you can take into account any factors you consider to be relevant. The scenarios above also demonstrate how the four broad themes are interrelated as some of them also raise issues relevant to the themes of motive or harassment.
A requester may consider the information sought would serve a particular purpose and that in doing so there is a public interest in its disclosure. However, if the information would not serve the intended purpose the value of the request would be reduced. But again, you need to be cautious. Just because the value of the request is not immediately obvious, this does not rule out the possibility of it having some value.
The Upper Tribunal in Dransfield used the term “vexatiousness by drift” to describe situations where, in the process of making a series of requests, the subject of those requests shifts. This means that the latest request has little relevance to the original subject matter. Such a pattern may mean that there is reduced value or purpose to the latest request. This is looked at in more detail under the section on ‘Motive’.
Just because there is a value or serious purpose to the request, this does not rule out the possibility of it being vexatious. As the Upper Tribunal in CP vs Information Commissioner  UKUT 0427 (ACC) 26 September 2016 explained:
“It is clear from the Court of Appeal’s decision [in Dransfield] that the public interest in the information which in the subject of the request cannot act as a trump card so as to tip the balance against a finding of vexatiousness” (paragraph 45).
You have to weigh that value or serious purpose against the factors which suggest that the request is vexatious. Those factors are discussed next.