LTT182 - Vexatious requests under EIR

• FOI/EIR: EIR
• Section/Regulation: reg 12(4)(b)
• Issue: Vexatious requests under EIR
• Related Lines to Take: LTT123
• Related Documents: EA/2008/0046 (Carpenter). EA/2009/0092 (Easter)
• Source: Information Tribunal
• Details: Carpenter / Stevenage Borough Council (17 November 2008); Easter / New Forest Park Authority (15 May 2010)
• Contact: GF
• Date: 13/09/2010
• Policy Reference: LTT182
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

1. It is permissible to refuse vexatious requests under regulation 12(4)(b) as manifestly unreasonable
2. It is still necessary to carry out the public interest test when refusing a request for environmental information under regulation 12(4)(b)
3. The Commissioner accepts that it may not be appropriate for public authorities to have to confirm or deny that information is held where the request is vexatious or manifestly unreasonable

Further Information

1. It is permissible to refuse vexatious requests under regulation 12(4)(b) as manifestly unreasonable.

Regulation 12 (4) states as follows:

(4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that-

(a) ...

(b) the request for information is manifestly unreasonable

In the case of Stephen Carpenter & Stevenage Borough Council, the issue arose as to whether regulation 12(4)(b) could be applied in the same way as s14 was applied under the FOIA. The complainant had argued that decisions in relation to vexatious requests had no bearing on the meaning of the words "manifestly unreasonable" and as such requested that they should not be referenced by the parties or the Tribunal. However, the Tribunal said at paragraph 8:

"...The Tribunal declined this request on the basis that those decisions might well have a bearing on the matter on which the Tribunal had to decide"

In reaching its conclusion, the Tribunal also said it "...reminds itself of the principles that have emerged in relation to section 14 FOIA..." (para 51) and then went onto apply those principles to the circumstances of the case to conclude that the requests were manifestly unreasonable. (Please see the IT summary for full details of this case).

Thus, the Commissioner accepts that the principles to be considered when looking at s14 cases (as set out in LTT123) can also be applied to cases involving Regulation 12(4)(b) although the following points should be borne in mind.

a) The term "manifestly unreasonable" is a wider concept than the term vexatious under the Act and thus Regulation 12(4)(b) may also relate to cases involving costs issues.

b) Also, Article 4 of the Directive upon which the Regulations are based states that the exceptions should be interpreted in a "restrictive way" although this is likely to have more application to cases where Regulation 12(4)(b) has been argued n relation to costs

c) There is a presumption in favour of disclosure at Regulation 12(2).

d) Regulation 12(4)(b) is an exception and thus is subject to the public interest test (Regulation 12(1)(b))

e) Furthermore, the background and pattern of any requests also made under FOIA can be taken into consideration under Regulation 12(4)(b)

f) Finally, each case is of course determined on its own circumstances

2. The public interest test under regulation 12(4)(b) and serious purpose / value

As stated in point (d) above, the exception provided by regulation 12(4)(b) is subject to the public interest test. In Easter v the Information Commissioner (EA/2009/0092), the Tribunal questioned the logic in applying a public interest test to manifestly unreasonable requests, but concluded that this requirement reflected the particular importance placed on making environmental information available.

There is an argument that following the approach set out above and in LTT123 (of considering the serious purpose and value behind a request in order to establish whether a request is manifestly unreasonable on the grounds of vexatiousness) and subsequently considering the public interest in disclosure as part of the public interest test amounts to double counting of the same argument. However, the Commissioner considers that he is not prohibited from carrying arguments relevant to engaging an exception through to the public interest test.

The Commissioner is of the view that there will sometimes be a difference between the serious purpose and value of a request to an individual requester (which is what should be taken into account when engaging the exception) and the public interest in disclosure to the world at large (which is what should be taken into account in the public interest test). He considers that cases might arise where the serious purpose and value of a request to an individual requester might not be sufficient to prevent a request from being manifestly unreasonable on the grounds of vexatiousness, but the public interest in disclosure of the information in question to the public might be sufficient to mean that the public interest weighs in favour of answering a vexatious request.

The Tribunal in Easter also commented that it did not require the public authority to provide it with the information which was the subject of the requests as to do so would expose the public authority to the very harm that the exception was designed to protect against (paragraph 63). It did not, however, rule out the possibility that there may be regulation 12(4)(b) cases where it is necessary to see the information in order to make a decision on the public interest. The Commissioner's view is that it will be difficult to properly assess the public interest in disclosure of information without having a good idea of its content There may also be occasions where the Commissioner needs to examine the contents of the information in question to determine whether or not the exception is engaged in the first place as it may have some bearing on whether the applicant was justified in showing a high level of persistence in pursuing an issue, or it could even reveal that the public authority shared some of the responsibility for a deterioration in its relationship with the applicant.

Should case officers see the information in regulation 12(4)(b) cases?

Case officers are advised to take a pragmatic approach with regard to assessing whether they should obtain the disputed information in these cases. Ideally, the Commissioner would wish to see the information in question in order to assess the public interest in disclosure, and where this will not be burdensome to the public authority, this should always be what happens. However, if the volume of information requested is such that accessing it would prove burdensome for the public authority then it may be possible to make an assessment on the balance of tile public interest by gleaning some idea of the public interest in the information from the nature of the request, i.e. from the subject that the request relates to, or from a description of the information in question. Alternatively, or where the wording of the request does not assist in this, the approach of requiring the public authority to provide a representative sample of the information in question should be considered.

3. Confirming or denying information is held under EIR

EIR requires a public authority to confirm or deny that the requested information exists and is held in response to all requests. Regulation 12(6) provides the only exception allowing a public authority to neither confirm or deny whether information exists and is held by a public authority if that confirmation or denial would involve the disclosure of information which would adversely affect any of the interests referred to in regulation 12(5)(a) (international relations, defence, national security or public safety).

Although the regulations do not provide an exception to confirming or denying information is held in response to requests that are manifestly unreasonable, the Commissioner accepts that it may be appropriate for a public authority not to do this where it is of the view that the request is vexatious / manifestly unreasonably, so as not to defeat the purpose of the exception. The approach to be taken to this issue when upholding a manifestly unreasonable decision in a decision notice, should be to make a finding that the request was manifestly unreasonable without making specific reference to the duty to confirm or deny.

Note: where a public authority refuses a request under regulation 12(4)(b) on me basis it is vexatious, the Commissioner does not consider that a duty arises under regulation 9(1) to provide any advice and assistance.