Vexatious exemption: tackling pointless FOI requests

A request under freedom of information (FOI) can be frustrating. I am a staunch supporter of the right to information, but abuse of that right gives ammunition to those who oppose it. To protect our right to information, we need to be able to weed out and deal with those abusing that right in a robust manner, and the recent tribunal case involving the Independent Police Complaints Commission (IPCC) goes some way to doing this by making it easier to apply the 'vexatious' exemption, but also by giving organisations the ability to single out requests as vexatious without legitimising them by dealing with them alongside other, genuine, requests.

Requests that are considered vexatious have their own exemption under FOI, in section 14. The Information Commissioner's guidance provided a five-point test in determining whether something fell within this section, and it set the bar pretty high, making it difficult for an organisation to use the exemption in any but the most extreme cases.

The IPCC case concerned an individual who established a pattern of asking for a list of investigations carried out by the IPCC over a particular period, and then making further individual requests for more information about particular investigations. The IPCC refused two such requests as vexatious, but, on an appeal by the applicant to the Information Commissioner (ICO), the ICO found that they were not vexatious. The IPCC appealed, and the tribunal found that the requests were vexatious, and dismissed the idea that all five criteria in the guidance had to be met before a request could be treated as such. Recognising the importance of section 14, the tribunal made four key pronouncements on what vexatious might mean:

A request that is 'so grossly oppressive in terms of the resources and time demanded by compliance'. Although an organisation could rely upon section 12 in such a case, a request that is clearly meant to cause nuisance should be classed as vexatious, rather than being granted some form of validity by applying section 12.

A request that is 'clearly motivated by a desire to cause nuisance'. This is perhaps the most significant of the tribunal's pronouncements. As long as an organisation has some evidence of intent (most likely from public comments or previous requests), there is no requirement to give any further consideration to requests that are not genuine.

A modest request in a series of similar requests with no obvious purpose can be vexatious, even if, in isolation, a particular request would not be. Less significant perhaps, but practically more useful, this assists where individuals are making a large number of seemingly innocuous requests. Much easier to prove, and without the additional requirement of showing some sort of disproportionate burden on the organisation, section 14 becomes more accessible where there is clearly some form of 'campaign' in place. The tribunal does not say how many requests are needed to form a 'series', but this is likely to be dependent on the facts of the case.

'The clear inference to be drawn from the requester's conduct is that he intends a future campaign of pointless requests just to keep the authority occupied, or to combine with others to circumvent the cost limits provided by section 12.' This covers a situation where a group of individuals are acting together to circumvent section 12 (the fees limit exemption).

Where organisations are the subject of meaningless requests that are being made for the purpose of disrupting an organisation's legitimate business, following this decision, it is much easier to brand them 'vexatious', rather than giving them any legitimacy by dealing with them as any other request. The decision does not give any guidance on how organisations can show that a request is 'pointless' or 'without purpose', and it is not a legal requirement to have a legitimate purpose in making a request. However, it is important that the right to information is protected, and this decision goes some way in doing that.