Y v The Information Commissioner

A request is vexatious under section 14(1) of the Freedom of Information Act 2000 only after a high-threshold, objective and rounded assessment of all relevant circumstances. The assessment may consider the burden on the public authority, the requester’s motive, the request’s value or serious purpose, and distress to staff. A relevant history of dealings must be evidenced and put into context; a superficial assertion of protracted correspondence is insufficient.

Nevertheless, deficiencies in the evidence of earlier dealings will not establish a material error of law where the recent requests themselves demonstrate a disproportionate campaign, substantial burden on small authorities, and no sufficient public interest or serious purpose to justify their volume.

The appellants, a husband and wife, made 36 information requests to three linked parish bodies within about four months. The requests followed a longstanding and sensitive dispute concerning an incorrect entry in their infant daughter’s burial record. The public authorities treated all but one request as vexatious under section 14(1) of the Freedom of Information Act 2000.

The Information Commissioner upheld that position. The First-tier Tribunal (General Regulatory Chamber) dismissed the appellants’ appeals on 15 February 2015. They appealed to the Upper Tribunal, contending that the tribunal had misapplied the high threshold for vexatiousness, lacked an adequate evidential basis for its assessment of prior dealings, and lacked jurisdiction.

1. Appeal dismissed. The First-tier Tribunal had not made a material error of law in holding the requests vexatious under section 14(1) of the Freedom of Information Act 2000.

2. The assessment of vexatiousness must be objective, broad and rounded. The high statutory threshold requires careful consideration of all relevant circumstances, including the burden on the authority, the request’s value or serious purpose, the requester’s motive where it can reliably be discerned, and harassment or distress to staff. The public interest in disclosure is important but is not conclusive.

3. Where the history between a requester and an authority is relevant, the Information Commissioner’s decision notice and the tribunal material must provide sufficient detail and context to permit scrutiny of that history. An exhaustive chronology is unnecessary. In this case, the decision notices and the tribunal’s analysis of pre-2013 dealings were inadequate and insufficiently nuanced.

4. Those deficiencies were not material. The evidence about the recent conduct established that 36 requests made to three small authorities in four months imposed a serious burden on limited staff, caused stress, and were persistent and repetitive. The tribunal was entitled to conclude that the requests formed a campaign pursuing a personal agenda rather than requests with sufficient serious purpose or public value.

5. The Commissioner and the tribunal had jurisdiction. The requests were made to public authorities within Schedule 1 to the Freedom of Information Act 2000 and were therefore requests for information under section 1. The fact that FOIA does not regulate what burial records an authority must keep or how they may be amended did not remove the requests from the statutory regime.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and held that the First-tier Tribunal had made no material error of law.
• First-tier Tribunal (General Regulatory Chamber): on 15 February 2015 dismissed the appellants’ appeals against the Information Commissioner’s decision notices and upheld the use of section 14(1) of the Freedom of Information Act 2000.