The long awaited guidance on vexatious requests has arrived. The guidance follows from two distinct events. The first was the Parliament’s review of FOIA during which the MoJ presented evidence that suggested council’s were limited in their ability to deal with vexatious requests. The second, following on from that political event, from which the judges appeared to have taken their cue, were a series of First Tier Tribunal (FTT) rulings which culminated in the definitive Upper Tier Tribunal (UTT) decision by Wikeley. In that nuanced decision, the UTT provided legal guidance on applying s.14. To state it briefly, a vexatious request would be one that was “A manifestly unjustified, inappropriate or improper use of a formal procedure.”
With definitive guidance from the UTT, the ICO is duty bound to prepare guidance on applying that judgement. Although the ICO’s guidance is not statutorily binding, it will be taken into account when the ICO has to decide on the use of the s.14. For organisations, the ICO’s guidance will be what they use when they apply s.14 to a request. The guidance is well written and is faithful to the previous ICO guidance on s.14. For a good technical summary, I recommend the FOIMan blog.
In this blog, I consider what the guidance means in terms of political philosophy. In particular, I explore what it means for the relationship between the individual and the state.
If the ICO is interested in defending information rights of individuals, it has to walk a difficult line. It has to meet its obligations to the legislation and be faithful to the law as expressed through FTT decisions or UTT decisions. As a result, the guidance and indirectly the UTT ruling are flawed. They are flawed because they are the first attempt at setting up guidance determining whether a request is vexatious. At a deeper level, though, they are flawed because the use of s.14 and it interpretation is not a matter of law and fact but a “value judgement”. As such, we enter a new period in the life of FOIA with uncertain effects on the balance of power between the individual and the state.
The law or a question of customer service
The FOIA through s.14 has changed from a question of law to a question of customer service and complaint resolution. Organisations will have to apply a “value judgement” regarding whether someone is receiving good customer service or whether their request creates an unjustified and disproportionate effect on the organisation. What this makes clear, which was perhaps only implicit, is that FOIA requests will be seen as part of a dispute resolution process rather than as a separate process of requesting information. In other words, FOIA is now related to complaint resolution.
With this guidance, we will see an explosion of cases brought to the ICO and the FTT as all parts of the guidance and the UTT decision are applied and tested by applicants and organisations. The other exemptions (s.14 is not an exemption) under FOI are about facts, what does the law say and how is it applied. Either the information is exempted, as understood by a reasonable person, (according to the law, the decision notices, the tribunal decisions and the high court cases), or it is not.
Why s.14 will be a growth area for the FTT and the ICO.
To illustrate why s.14 is most likely to be a growth areas consider the history of the other exemptions. Most exemptions have died down as their shape has emerged after being sculpted by the torrent of appeals through organisations, the ICO, the FTT, and the High Court. There are fewer and fewer arguments or appeals on basic issues around s.43 or s.40 (these were the two most frequently used exemptions). By contrast, national security exemption remains relatively unchanged because it has been used so infrequently its use is so specialised that it will be unlikely if ever to change its shape.
What we will find over the coming months and years is that s.14 will be similarly defined except that it is not based on law but upon a “value judgement”. As a result, it cannot be sculpted down because none of the criteria can be defined in the way that the tests for s.40 or s43 can, and have been, defined. There is either a prejudice, its effect can be demonstrated or inferred and its likelihood shown or there is not. If that prejudice is not in the public interest, then the exemption stands. (s.43).
If we are abusing our rights, is a judge to decide or the legislature?
In s.14, the issue is whether someone is abusing his or her right to know. How is that to be defined? (I have written elsewhere of my views about the statement abusing rights, so I will avoid discussing it) As this is about a dispute or a complaint resolution process, the FOIA is not the end in itself but rather a symptom of the underlying issue. If FOIA is no longer motive or purpose blind, at least regarding s.14, then it is open to more rather than less interpretation and debate. In effect, each of the 13 guidance notes for applying s.14 can be tested.
The deeper question raised by the FTT rulings and the UTT ruling is how do we determine if someone is abusing their right? What does this say about a democracy when the government can tell its citizens that they have abused their rights. If this is the case, is it not for Parliament, rather than judges, to determine the extent of those rights through a democratically accountable procedure?
Who decides what is proportionate or justified?
At a more practical level, how does an organisation, or the applicant, demonstrate that their use of the right to know is justified or proportionate? Despite claims that s.14 is not subject to a public interest test it appears to contain one. The need to determine whether the request is justified or proportionate sounds like a public interest test. Once the applicant and the organisation have reached an impasse regarding this decision, then the ICO will have to decide.
The ICO will have to rule whether someone’s repeated requests for information about their case [insert an emotive issue] is justified or proportionate. How does one determine whether someone’s request is justified or not? In one case, one request was considered vexatious. In another, someone who had 140 letters to a council had their latest request refused vexatious *even though* they did not know all their previous letters were being treated as FOI requests.
Does the individual now have to rely more upon institutions for their rights?
If the individual is to be dissuaded from submitting FOIA requests because theirs had been rejected, does that suggest that the individual now has to rely on an organisation or institution to exercise their rights. If the individual has to exercise their right through an organisation or institution, rather than on their own, what does this say for democracy?
Consider the following scenarios:
If the applicant then writes to their MP and the MP asks the same question on their behalf, is the MP vexatious? If not, why not? If so, why?
If the press over time never receive a refusal under s.14 does that suggest that the public will then start to take their FOI related issues to the press so that the press can ask the same question on their behalf? If that occurs, is the Press vexatious at the point? If not, why not, if so, why?
If someone makes the same request through their Citizen Advice Bureau, will the same issue apply? Will they be considered part of a campaign?
If the press, the MP, and an organisation become the venue for FOIA, does that further shift the balance of power away from the individual to the state?
Why is the guidance silent on the remedies for the individual?
The guidance is silent on issues that relate to the individual. Here so some questions that raise further concerns for the individual.
First, if an organisation makes frequent use of s.14 what will the ICO do? The guidance is silent on this issue.
Second, if someone has had a request ruled vexatious previously, does that mean they have a mark against them? Is this is part of their “permanent” record, will it make it easier or the organisation to refuse future requests from them as vexatious? If not, why not. If so, why?
Third, if an applicant explains to the ICO that (all, some, many, a few) of my requests are being refused as vexatious, how will the ICO react? Will they require the organisation to provide the information or reconsider how it applies s.14? If the organisation comes to the same conclusion, how is the ICO to proceed? How will the ICO argue against the value judgement that the organisation had to make?
In sum, the guidance is silent about the ICO’s remedies for the individual who has had their request declared vexatious.
In reading the guidance and s17 (6) of the FOIA, which states that an organisation does not need to respond where it has previously refused a request as vexatious, I am reminded of a quotation by General DeGaulle.
“Silence is the ultimate weapon of power.”
 The MOJ evidence can be found here. What the evidence suggested was that councils were finding it difficult to apply vexatious and that such applications were unlikely to work because of the uncertainty meant that it would likely be overturned by the ICO or the FTT. The two claims were that organisations were unlikely to use s.14 because it was uncertainty over how to approach it and that if they used s.14 the ICO would not support them. See in particular paragraphs 95-100. When one makes a cursory glance at the use of s.14 and its success with the ICO and the FTT the evidence does not support it.
An applicant has to exhaust the internal review process and file a complaint with the ICO to get to a decision notice regarding s.14. The following set of statistics present a different context from the MoJ’s statement.
From 2007 to 2011, there were 104 decision notices by ICO regarding s.14
In 2011 there were 115 decision notices regarding s.14
In 2012 there were 85
In 2013 (to February 1) there have been 13.
The vast majority of these are not upheld. What that means is that in 88 of the 330 cases, the organisation’s use of s.14 was only overturned in 26%. Thus, the ICO supported the organisation in 74% of all s.14 decision notices.
One must note that s.14 has the highest number of appeals to the FTT per decision notice given that the first s.14 case did reach the FTT until 2007. One will also note that, the organisation or ICO view has been upheld at a higher percentage rate within FTT decisions, 42 out of 46 (91%) of the cases, than any other category that has over 20 decisions.
- FOIA Request to DOJ Yields Expansively Redacted Response (bespacific.com)
- Federal Agencies Lagging on FOIA Processing – What’s the Hold Up? (pogoblog.typepad.com)