The day Freedom of Information died in the United Kingdom

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The 29^th of March passed without much notice for most people in the United Kingdom. For freedom of information, it was a watershed day. From this day forward, Freedom of Information will never be the same.  Why?  The First Tier Tribunal ruled on EA/2011/0222.  The ruling allows authorities to dismiss requests out of hand if they seem to be costly or at all related to another request from the same applicant. The ruling is important because it linked two exemptions together s.12 (fees limit) and s.14 (vexatious).

The following is a speculative assessment of the ruling and its implications for freedom of information. My only evidence is the ruling itself. I ask that you read this and decide whether it has helped or hindered Freedom of Information in the United Kingdom.

Now many people might believe that the ruling is a technical matter only of concern for practitioners and legal professionals. They would be wrong because it has a chilling effect on democracy. The decision undermines a citizen’s ability to get access to information. Most of all, it hinders our ability to hold power (organisations) to account.  The balance has shifted away from the person back to the state.  The ruling has turbocharged the vexatious exemption.  The Act will never be the same.

Why? How can you make such a claim?

In the past, the Act allowed organisations to refuse requests because they were vexatious.  The term was not defined, by design, and the Information Commissioner’s Office (ICO) offered five tests for assessing whether a request could be described as vexatious. They have the power to refuse requests if they exceeded the fees limit set by legislation (s.12).  The s.12 fees limit can now be considered a criterion for considering a request as vexatious.  The ICO had always insisted that the two exemptions were separate and the test for vexatious had to be cost *and* effort not simply cost.

By linking costs limits with vexatious, one now has an almost perfect defence to any request from someone on a topic. The vexatious exemption is stronger than most realize and linked to the fees limit, it becomes extremely potent.  For example, if a request is ruled vexatious and the authority informs the applicant of that fact then they do not have to respond to any future requests on that topic.  In other words, s.1 (1) right no longer applies (your right to make a request) and s.16 (the need to offer advice and help) no longer applies

So what?  If the exemption already exists, is this an issue?

Any large request, or series of requests from an applicant, can be considered vexatious.

Ok, why use vexatious, why not use a s.12 fees limit and refuse that way?

If you use a s.12 refusal, you have to offer s.16 advice and help to the applicant.   By contrast, a s.14 overrides s.16.   If you declare a request vexatious then you do not need offer advice and help. Moreover, you can refuse the request without offering a reason beyond that it is vexatious.

Surely, you have to engage other tests as set out by the ICO.

Yes, you would but this is where the fees limit becomes important.  The Tribunal said that a wide-ranging request was “undiscriminating in its nature”.  Therefore, it was without obvious merit or purpose. (Paragraph 20). Moreover, one read into that such a wide-ranging request was designed to hinder the organisation both of these are categories within the ICO’s test. Thus, any large request will now have an automatic fit to three of the categories suggested by the ICO.

Ok, I see that there may be a concern, but why is the fees limit so important?

What most people do not realize is that the fees limit has been expanded. Regulation 3(3) of the Information and Data Protection (Appropriate Limits and Fees) Regulation 2004 (SI 2004/3244) give authorities the power to use the fees limit to link two or more requests and thus deal with “campaigns”.  The fees limit is a powerful exemption in its own right. .

When linked to the vexatious request, as a criterion, the regulations give a powerful deterrent.  In this statutory instrument, Regulation 5 (2) provides the language that makes it almost impossible to challenge.

“5(2) this regulation applies in circumstances in which (a) the two or more requests referred to in paragraph (1) relate, to any extent, to the same or similar information, and (b) those requests are received by the public authority within any period of sixty consecutive working days”.

The vexatious exemption now allows you to link two or more requests by an applicant over 60 consecutive working days (roughly 3 months).  The real strength though is that it the authority can use it with requests that relate, *to any extent* to the same or *similar* information.  What the s.12 does is act like a steroid for s.14 exemption.  As a criteria, that means that the authority can consider any request from the applicant that is linked *to any extent* [please note that this is not defined so that a request from the same applicant could be considered linked]. If it relates to the same or similar information, [again this is not defined and can cover anything from the organisation or on the topic].

What this means is that if you put in a large request, it can be refused as vexatious out of hand.  (Paragraph 19) If they explain that it is vexatious that they will not accept future requests, they do not have to respond to future requests for 60 consecutive working days.  If you put in two smaller requests they can be considered linked for the purposes of the fees limit regulation as that is a criteria for being vexatious, they can be refused as vexatious.

When a request is refused as vexatious, there is no need to give a reason because it is not a qualified exemption.  There is no public interest test as for other exemptions.

Surely, I can complain.

If the authority has explained that your future requests on this vexatious request them will be refused, then you cannot invoke your s.50 rights and appeal to the ICO.

Hey, wait a minute, I have read the ICO’s guidance and it has to be reasonable in all circumstances to refuse requests as vexatious in the future. 

Yes, that is correct. The fees limit helps you here as well.  The ruling lets an authority link future (related) requests.  As they are related *to any extent* the authority can invoke the fees limit criteria to argue that it is reasonable to refuse. The fees limit argument gives an authority a reasonable ground to consider the requests as related and can be refused. Remember if the requests from the same person (or a campaign) relate *in any way*, they would be captured by the fees limit regulation.

Consider the following scenario now possible because of the Tribunal’s ruling. 

An applicant makes a request to have 3 years worth of reports published. The authority does not publish these reports so they are not available through the authority’s publication scheme.  The authority can declare the request vexatious out of hand (paragraph 19) because it *would have* required the authority time and effort.  A large request can be considered “undiscriminating in its nature”, and the request can be considered unreasonable and of uncertain value. (Paragraph 20) In sum, the sheer cost and scale of the request can make it vexatious.

So what?

When a request is declared vexatious, the authority has increased powers. They can refuse to acknowledge future related request.   The authority is no longer bound by s 1(1).  The refusal notice s.17 is not required because s.14 does not apply per 17(6).

Well, this only lasts for 60 days, surely, they just have to wait and come back in 60 days?

Once you look at the criteria for vexatious, you realize that you cannot escape it once designated as such.

How can that be?

One of the categories for determining whether a request is vexatious is whether it is a pattern or manifest unreasonableness for the same information.  An applicant returning after 60 working days would show a pattern of behaviour bordering on obsessive or unreasonable.  The follow up request can be declared vexatious as it relates to a previous request on the same or similar topic.

The ruling has the effect of chilling any large requests and that the power of the vexatious exemption has been turbocharged.  What this means is that applicants should only put in small requests, they should only make them infrequently. Above all, they should not displease the authority or be considered hostile to the authority. If you do that, it can be used in deciding whether the request may be refused as vexatious. (See paragraph 20)  If declared as vexatious, your request can be refused out of hand. (Paragraph 19) The Tribunal says that an authority does not have to rely upon the Information Commissioner’s criteria.

What the ruling has done is limit the citizen’s ability to hold an authority to account has been limited. The Freedom of Information Act no longer allows them access to an organisation.

You are being extreme with a speculative argument. This cannot happen as you describe.

Well, read the ruling. You will see that Freedom of Information has died.

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