The vexed question of burdensome FOIA requests

Since the Freedom of Information Act 2000 (FOIA) came into force in 2005, a body of case law has been built up to elucidate its meaning and application in different circumstances. In particular, the concept of a vexatious request, which is not defined by the FOIA, has evolved through case law in ways that are helpful to institutions.

A particular challenge is those requests that represent a significant burden on an institution’s resources, but are not requests that can be refused on costs grounds.

The costs limit can only be applied to the information-retrieval process i.e. locating and extracting the requested information. In many cases it is easy for institutions to locate and retrieve the information; deciding what exemptions apply and redacting exempt information are often the more onerous and resource-consuming tasks, but cannot be taken into account in estimating whether the costs limit of £450 will be exceeded.

Cases on vexatious requests have established the principle that one-off requests may be refused as vexatious on the grounds of resources. They can also be rejected on the grounds of resources alone, without the need to show any other aggravating factors such as distress to staff or a malevolent or improper motive.

A recent case concerning a request by a professor of political science for Cabinet Office documents relating to the UK’s relationship with Libya provides a useful summary of the state of the law in relation to this particular issue (Cabinet Office v IC and Ashton [2018] UKUT 208 (AAC)).

The Cabinet Office refused as vexatious Prof Ashton’s request because it would amount to a significant burden to redact papers in files spanning a period of 12 years, totalling 1,053 pages. The refusal was upheld by the Information Commissioner’s Office (ICO). Prof Ashton appealed the ICO’s decision and was successful in the First Tier Tribunal (FTT). The Upper Tribunal (UT) upheld the FTT’s decision. It was acknowledged by all that the request was very burdensome and that there was a substantial public interest in the requested information.

The UT’s decision includes the following points which are worth noting:

• There is no doubt that vexatiousness can be invoked on the grounds of resources alone;

• The threshold for a finding of vexatiousness is a high one (for the ICO in relation to the burden on resources, the threshold is “grossly oppressive”);

• Where the request would pose a burden on resources, institutions must make a holistic assessment of all the relevant considerations before refusing the request as vexatious;

• Public interest will not as a matter of principle outweigh the burden to the institution; the strength of public interest is simply one, albeit important, material factor when considering all the circumstances of the request;

• Institutions cannot place an emphasis on the limited nature of their resources to justify a refusal to comply with a request; recognising any entitlement to do so would emasculate the right of access to information conferred by the FOIA.

The decision underscores the tension between openness, undoubtedly an important element in any democratic society, and the significant challenge to resources that maintaining openness represents. It provides a clear message that institutions need to invest in resources so that they can comply with the FOIA, but it also provides some comfort that where resources are put under an oppressive strain by a request, that request may be refused as vexatious.

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