In Grange v The Information Commissioner, the Court of Appeal recently upheld a decision of the High Court and the Information Commissioner relating to frivolous or vexatious FOI requests. The Information Commissioner’s decision was that FOI bodies are entitled to have regard to the broader manner in which a requester has engaged with the FOI body when deciding if an FOI request is frivolous or vexatious. The Court of Appeal also commented favourably on the Guidance Note of the Commissioner regarding frivolous or vexatious requests.

Background

In 2016 the Department for Foreign Affairs and Trade refused an FOI request, for access to records concerning a grant scheme in relation to election observers, as being frivolous and vexatious. In refusing the request the Department had relied on s. 15 (1) (g) of the Freedom of Information Act 2014, as amended. The Department contended that the requester had engaged in a pattern of conduct that constituted an abuse of process. This included submitting 11 FOI requests since 2013 relating to the roster of election observers. There was also a broader history of dealings between the requester and the Department. The requester had been unsuccessful in his application for appointment to the election-monitoring roster in 2013. Since then the requester had pursued several avenues to challenge the decision, including Parliamentary Questions and Data Protection requests. On review, the Information Commissioner affirmed the Department’s decision. The Commissioner was satisfied that it was appropriate for an FOI body to have regard to the broader manner in which a requester has engaged with it.

The requester appealed the Commissioner’s decision to the High Court. He contended that the Commissioner had been mistaken as his FOI request should have been considered on a standalone basis. However, the High Court affirmed the Commissioner’s decision.

Court of Appeal decision

The requester then appealed the matter to the Court of Appeal. He argued, amongst other things, that the Commissioner was precluded from considering the motive for the FOI request and from drawing inferences from the requester’s previous FOI requests or other communications with the Department. Ultimately, however, the Court of Appeal disagreed.

The Court of Appeal did not apply a comprehensive definition of frivolous or vexatious and noted that there can be overlap between what is frivolous and what is vexatious. The Court of Appeal instead placed emphasis on the association of vexatiousness with abuse of the process. On this basis, the Court of Appeal found the following:

• The High Court was correct to find that using the FOI process to prosecute a personal grievance was an abuse of that process and could legitimately be classified as vexatious
• A FOI request may be vexatious even if the requester can point to a particular public interest he/she is pursuing
• The Commissioner was entitled to rely on the history of dealings between the requester and the Department.
• There was ample evidence before the Commissioner that the FOI request was directly related to the requester’s ongoing grievance with the Department, and
• The Commissioner was entitled to find that a pattern of conduct existed that amounted to an abuse of the FOI process, and that the Department was justified in refusing the request as “vexatious”

Conclusion

For FOI bodies, responding to frivolous or vexatious FOI requests requires the allocation of scarce time and resources. However, it has traditionally been quite difficult to successfully refuse a request as frivolous or vexatious. Thankfully, this decision confirms that, where faced with a requester who is potentially abusing the FOI process, FOI bodies are entitled to consider the broader pattern of conduct of the requester. It is hoped that this will help any FOI bodies that are dealing with serial and disgruntled FOI requesters.

For more information and expert advice on dealing with vexatious requests, contact a member of our Freedom of Information or Public, Regulatory & Investigations team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.