Dransfield & Anor v The Information Commissioner & Anor

“Vexatious” under the Freedom of Information Act 2000 has an objective, high-threshold meaning. The starting point is whether the request has any reasonable foundation for believing that the information would be valuable to the requester, the public or a section of the public. All relevant circumstances may be considered, including past dealings, burden, conduct, motive and cost. A benign current request need not be tainted by earlier requests before that history becomes relevant, but bad motive alone is insufficient where important information ought to be disclosed. “Vexatious” and “manifestly unreasonable” under the Environmental Information Regulations 2004 are practically very similar, although the EIR require a public-interest balance. Costs may be considered under either regime.

Mr Dransfield sought information from Devon County Council about drawings and lightning-protection results for a pedestrian bridge. The council and the Information Commissioner refused the request under the Freedom of Information Act 2000. The First-tier Tribunal allowed his appeal, but the Upper Tribunal reversed that decision and held the request vexatious in [2012] UKUT 440 (AAC).

Mrs Craven made requests concerning laws and information relating to high-voltage overhead cables. The requests were refused under the Freedom of Information Act 2000 and, for environmental information, the Environmental Information Regulations 2004. The First-tier Tribunal dismissed her appeal by a majority. The Upper Tribunal remade the decision and dismissed her appeal in [2012] UKUT 442 (AAC). The central issues were the relevance of previous dealings, the relationship between the two statutory tests, the Information Commissioner’s ability to raise the EIR exception, and the relevance of compliance costs.

The Court of Appeal unanimously dismissed both appeals. Lady Justice Arden gave the leading judgment, with Lady Justice Gloster and Lady Justice Macur agreeing.

1. Meaning of vexatiousness. Under section 14 of the Freedom of Information Act 2000, the court should apply an objective standard and begin by asking whether the request has any reasonable foundation for believing that the information sought would be of value to the requester, the public or any section of the public. The threshold is high because FOIA confers an important constitutional right. All relevant circumstances must be considered. A reliable discernible motive may provide evidence, but vengeance or another bad motive does not by itself defeat a request for important information that ought to be publicly available. The constitutional balance was explained in Kennedy v Charity Commission [2014] 2 WLR 808, while Bradford Corporation v Pickles [1895] AC 587 illustrated the ordinary rule that a bad motive does not invalidate a lawful act.
2. Previous dealings. A decision-maker is not required to find that earlier requests tainted or infected the current request, or that there was a common underlying grievance. Previous requests, correspondence, conduct and the likely future burden may be relevant even where the current request appears precise and polite. The First-tier Tribunal’s bright-line approach wrongly fettered the required rounded assessment.
3. Relationship between FOIA and EIR. “Vexatious” under section 14 and “manifestly unreasonable” under regulation 12(4)(b) of the Environmental Information Regulations 2004 are, in practice, very close. The EIR test remains subject to the public-interest balance in regulation 12(1)(b), and “manifestly” requires clear demonstration. The Information Commissioner could raise the EIR exception even though the authority had not relied on it earlier, following DEFRA v Information Commissioner [2012] PTSR 1299 at paragraphs 19 and 28.
4. Repetition and costs. Section 14(2) has a separate purpose and does not restrict section 14(1) or require repetition before section 14(1) can apply. Costs of compliance may be considered under both FOIA and the EIR. Under the EIR they must be balanced against the benefits and public interest in disclosure. The court expressed no concluded view on the precise status or effect of the Aarhus Implementation Guide, although it noted that volume and complexity alone were said not to justify withholding under the EIR.

• Court of Appeal (Civil Division): In [2015] EWCA Civ 454, both appeals from the Upper Tribunal were dismissed.
• Upper Tribunal (Administrative Appeals Chamber): In [2012] UKUT 440 (AAC), the tribunal set aside the First-tier Tribunal’s decision in Mr Dransfield’s case and remade it, finding the request vexatious. In [2012] UKUT 442 (AAC), it upheld the dismissal of Mrs Craven’s appeal in substance and remade the decision by applying its guidance.
• First-tier Tribunal: Mr Dransfield’s appeal succeeded. Mrs Craven’s appeal was dismissed by a majority.