Howard Liu v Information Commissioner

For a request to be treated as vexatious under section 14(1) of the Freedom of Information Act 2000, the tribunal must assess the request’s actual purpose and context. It cannot attribute a purpose unsupported by the request and then dismiss the request as valueless on that false premise.

A request framed broadly to cover possible records and locations is not, without more, an unreasonable burden. The tribunal must distinguish the information sought, its possible locations and the work required to locate it. Where compliance costs may exceed the statutory limit, section 12 provides a distinct route for the public authority.

Howard Liu requested from the British Library all records concerning the cataloguing in 2015 of a PhD thesis. The Library refused the request as vexatious under section 14(1) of the Freedom of Information Act 2000. The Information Commissioner upheld that decision.

The First-tier Tribunal (General Regulatory Chamber), reference EA/2023/0152, dismissed Mr Liu’s appeal. It treated the request as an attempt to establish that the thesis did not exist, found it of little value, and relied on its breadth, persistence and the burden on the Library.

On appeal, the Upper Tribunal considered whether those findings disclosed an error of law, particularly after the Library admitted that its earlier records incorrectly stated that a copy of the thesis had been uploaded in 2015 rather than 2019.

1. Appeal allowed. The First-tier Tribunal made an error of law in applying section 14 of the Freedom of Information Act 2000. Its decision was set aside and the case remitted for a rehearing by a differently constituted tribunal.

2. The First-tier Tribunal wrongly assumed that Mr Liu’s purpose was to establish that the thesis did not exist. The request concerned the Library’s internal records and processes. It was made after a copy of the thesis had been provided in 2019, and did not itself proceed on an assumption that the thesis did not exist.

3. That mistaken premise caused the tribunal to find the request valueless by reference to evidence about the award of the PhD. The later admission that the Library’s records had been inaccurate showed that the request had a purpose, or at least a consequence. The tribunal’s reasoning therefore did not properly address the request it had to decide.

4. The tribunal’s criticism of the request’s breadth was also unrealistic. A requester will commonly not know what information the authority holds or where it is held. A broad formulation may sensibly require the authority to check all possible locations and avoid further requests.

5. The tribunal had conflated the information sought, its possible location and the effort required for a search. If compliance would require excessive time, the Library could rely on section 12 of the Freedom of Information Act 2000. These errors justified and required a rehearing. The separate ground labelled bias did not require determination.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for error of law under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007, and remitted the case for rehearing.
• First-tier Tribunal (General Regulatory Chamber): In reference EA/2023/0152, dismissed Mr Liu’s appeal from the Information Commissioner’s decision that the request was vexatious under section 14(1) of the Freedom of Information Act 2000.
• Information Commissioner: Upheld the British Library’s refusal of the request under section 14(1) of the Freedom of Information Act 2000.