How do we deal with a single burdensome request?

A single request taken in isolation, for example the first and only request received from an individual, may be vexatious solely on the grounds of burden. That is, where complying with the request would place a grossly oppressive burden on your resources which outweighs any value or serious purpose the request may have.

The issue was considered in Independent Police Complaints Commissioner vs The Information Commissioner (EA/2011/0222, 29 March 2012). The ICO argued that if the burden imposed by a voluminous request was the public authority’s primary concern it should first look at the application of section 12 and determine whether dealing with the request would exceed the appropriate cost limit. However the Tribunal found that:

‘‘A request may be so grossly oppressive in terms of the resources and time demanded by compliance as to be vexatious, regardless of the intentions or bona fides of the requester. If so, it is not prevented from being vexatious just because the authority could have relied instead on s.12 [section 12 of the FOIA].”(paragraph 15).

Therefore, it is clear that you can apply section 14 where the sole ground for considering a single request vexatious is the burden it imposes. This was confirmed in Cabinet Office vs Information Commissioner and Ashton [2018] UKUT 208 (AAC) in which, at paragraph 27, the Upper Tribunal agreed with the ICO that:

“In some cases, the burden of complying with the request will be sufficient, in itself, to justify characterising that request as vexatious, and such a conclusion is not precluded if there is a clear public interest in the information requested. Rather, the public interest in the subject matter of a request is a consideration that itself needs to be balanced against the resource implications of the request, and any other relevant factors, in a holistic determination of whether a request is vexatious.”

You need to take account of the public interest in the subject of the request. This means that there is no predetermined cost above which any request becomes vexatious. This is quite different to the position under section 12 (which is discussed in more detail shortly), where regardless of the importance of the issues raised, you can refuse the request if the cost of compliance exceeds a set cost limit. This was spelt out in the following case.

Requests where collating the requested information will impose a significant burden

Despite the Information Tribunal’s findings in the IPCC case, we strongly recommend that if your main concern is the cost of finding and extracting the information, you should consider the request under section 12 of the Act, where possible.

This is consistent with the views expressed by the Upper Tribunal in Craven vs The Information Commissioner and the Department of Energy and Climate Change [2012] UKUT 442 (AAC), (28 January 2013):

“…if the public authority’s principal reason (and especially where it is the sole reason) for wishing to reject the request concerns the projected costs of compliance, then as a matter of good practice serious consideration should be given to applying section 12 rather than section 14 in the FOIA context. Unnecessary resort to section 14 can be guaranteed to raise the temperature in FOIA disputes…” (paragraph 31).

Furthermore, the Code of Practice issued by the Cabinet Office under section 45 of FOIA makes it clear that you should always consider section 12 first in these circumstances (see paragraph 7.14 of the code).

It is also important to bear in mind that the bar for refusing a request as “grossly oppressive” under section 14(1) is likely to be much higher than for a section 12 refusal. It is therefore in your own interests to apply section 12, rather than section 14, if a request would exceed the cost limit.

Under section 12, you can refuse a request if it would cost more than a set limit to find and extract the requested information (£600 for central government and £450 for all other authorities).

Under section 12, you may also combine the total cost for all requests you receive from one person (or several people acting in concert) over 60 days, as long as they are requests for similar information. Please see our guidance on Requests where the cost of compliance exceeds the appropriate limit for more details. When refusing a request under section 12, you are also obliged to provide advice and assistance in accordance with section 16 of FOIA.

Requests which would impose a grossly oppressive burden but are not covered by the section 12 cost limits

You cannot claim section 12 for the cost and effort associated with considering exemptions or redacting exempt information.

Nonetheless, you may apply section 14(1) where you can make a case that the amount of time required to review and prepare the information for disclosure would impose a grossly oppressive burden on your organisation.

However, we consider there is a high threshold for refusing a request on such grounds. This means that you are most likely to have a viable case where:

• the requester has asked for a substantial volume of information; and
• you have real concerns about potentially exempt information, which you are able to substantiate, if asked to do so by the ICO; and
• you cannot easily isolate any potentially exempt information because it is scattered throughout the requested material.

If a refusal leads the requester to complaining to the ICO, we expect you to provide us with clear evidence to substantiate your claim that the request is grossly oppressive. We will consider any requests which are referred to us on the individual circumstances of each case.

The Salford City Council decision demonstrates how you need to balance the impact of handling the request against its value and purpose in order to determine whether the effect on the authority is disproportionate.

Advice and assistance

There will be situations where you believe that complying with the request imposes a grossly oppressive burden, whether due to the cost of finding and extracting the information, or for tasks not covered by the section 12 cost limit. In these cases, you should consider contacting the requester before claiming section 14(1), to see if they are willing to submit a less burdensome request. Certainly, where burden is the sole ground for considering an otherwise reasonable request to be vexatious, we expect you to do so, as a matter of good practice.

It is notable that in Dransfield, the Upper Tribunal suggested that where the request is broad and captures a large volume of information, it is more appropriate for a public authority to provide advice and assistance with a view to encouraging the requester to refine their request, rather than relying on section 14(1).

Where you decide it is appropriate to provide advice and assistance, you should do so as soon as possible. This means that the complainant has the opportunity to withdraw their original request within the time limit for complying with it. This may only be practicable if it is obvious from an early stage that the request is burdensome. In other cases, the extent of the burden may only become apparent once you have started to process the request. In these cases, it may only be possible to provide advice and assistance as part of the refusal notice.

We consider that there are real benefits in providing advice and assistance where the sole concern is burden. This is because refusing a request under section 14(1), without providing an opportunity for the request to be refined, is likely to result in a request for an internal review and, potentially, a complaint to the ICO. Therefore, if there is a more constructive way for you to overcome the problem of burden, it makes sense to explore that possibility.

When providing advice and assistance, you should make it clear to the requester that even if they submit a refined request, this does not necessarily mean that you will be able to comply with it. There may be other exemptions that apply. The objective when providing advice and assistance is simply to enable them to submit a request that you could consider, without it being too burdensome. Where it is obvious that the information may attract a particular exemption, you may choose to alert the requester to that possibility. However, you need to avoid creating the suspicion that you are either trying to direct the requester away from sensitive information, or that you have pre-judged whether to apply an exemption.

If you refuse a request due to the burden imposed by activities that are not covered by the section 12 cost limits, there may be less opportunity to provide meaningful advice.