Keith Kennaugh v The Information Commissioner

Section 17 of the Freedom of Information Act 2000 is procedural. Reliance on section 17(6) does not remove the public authority’s substantive duty under section 1 unless the request is vexatious under section 14. The Information Commissioner and the First-tier Tribunal must therefore address both questions. Whether a request is vexatious requires a holistic assessment of the circumstances, including burden, motive, value or serious purpose, harassment or distress, and any previous course of dealing. These are broad themes, not a mandatory checklist. A tribunal may rely on relevant evidence collated in earlier decision notices, provided it makes its own findings and assessment.

The appellant challenged a decision of the First-tier Tribunal (General Regulatory Chamber) concerning an information request made to West Yorkshire Combined Authority. The authority had not responded, relying on section 17(6) of the Freedom of Information Act 2000 after previously treating similar requests as vexatious under section 14.

The Information Commissioner’s decision notice concerned only the request of 4 May 2022. The First-tier Tribunal dismissed the appeal, finding that the request was vexatious and that section 17(6) applied. The central issues before the Upper Tribunal were the scope of the appeal, the relationship between sections 14, 17(6) and 1(1), and whether the First-tier Tribunal had erred in law.

1. Appeal dismissed. The First-tier Tribunal’s decision dated 15 March 2024 involved no error of law.
2. The appeal concerned only the request of 4 May 2022. The request of 17 May 2022 was outside the scope of the Information Commissioner’s decision notice and therefore outside the appeals to both tribunals.
3. Section 17 is procedural. It requires notification of the exemptions relied upon, whereas section 1 imposes the substantive duty to confirm whether information is held and communicate it unless an exemption applies. Reliance on section 17(6) may be procedurally valid even if the authority is ultimately wrong under section 14, but the authority remains compliant with section 1 only if section 14 in fact applies.
4. The Information Commissioner and the First-tier Tribunal therefore had to determine separately whether the request was vexatious and whether section 17(6) excused a further notice. The First-tier Tribunal was entitled to consider those questions in either order.
5. The approach to vexatiousness stated in Information Commissioner v Devon CC and Dransfield involved four broad, non-exhaustive themes: burden on the authority and staff, the requester’s motive, the request’s value or serious purpose, and harassment or distress. The assessment must be holistic and must reflect manifest unreasonableness, irresponsibility and, particularly in a continuing course of dealings, lack of proportionality. The statutory threshold is high.
6. The First-tier Tribunal was entitled to rely on the evidence collated in earlier Information Commissioner decision notices. It did not simply adopt those decisions; it made its own factual findings and assessed the present request.
7. On the evidence, the First-tier Tribunal was entitled to find a pattern of requests concerning the same subject matter, relevant motive and limited objective value. Lack of objective value could not alone establish vexatiousness, but other relevant factors were present. The request was therefore vexatious under section 14(1), and the authority was entitled to rely on section 17(6).

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed. The First-tier Tribunal decision dated 15 March 2024 under case number EA/2023/0275 was upheld as involving no error of law.
• First-tier Tribunal (General Regulatory Chamber): appeal against the Information Commissioner’s decision dismissed. The Tribunal found that the 4 May 2022 request was vexatious under section 14(1) and that the authority was entitled to rely on section 17(6).
• Information Commissioner: decision notice dated 2 May 2023 concerned the 4 May 2022 request and upheld reliance on section 17(6).