For the first time the Court of Appeal has considered the provisions allowing a public authority to refuse an information request because it is vexatious or manifestly unreasonable for the purposes of section 14(1) of the Freedom of Information Act 2000 (FOIA) and regulation 12(4)(b) of the Environmental Information Regulations 2004 (EIR), respectively. The issue arose in two conjoined appeals – Dransfield v Information Commissioner & Devon County Council and Craven v Information Commissioner & Department of Energy and Climate Change [2015] EWCA Civ 454. Arden LJ gave the only reasoned judgment, dismissing both appeals.
The two cases had previously been decided by the Upper Tribunal (the UT) as connected test cases – [2012] UKUT 440 (AAC), [2013] 1 Info LR 360 and [2012] UKUT 442 (AAC), [2013] 1 Info LR 335, respectively. In both cases the UT had allowed the respective appeals against the decisions of the First-tier Tribunal (the FTT) (by the Information Commissioner in Dransfield and by Mrs Craven in Craven) and remade the decisions, in each case finding that the requests had been vexatious and, in Craven, also manifestly unreasonable under the EIR.
Dransfield concerned section 14(1) FOIA only. It was accepted that the particular request was concisely and politely worded, but Devon CC and the Commissioner had concluded that it was vexatious when viewed in the context of previous correspondence and FOI requests. The FTT had found it was not, as there was no underlying grievance linking the request and previous correspondence.
The UT had held that “vexatious” connoted “manifestly unjustified, inappropriate or improper use of FOIA” and identified four non-exhaustive “issues or themes” that were relevant: burden, motive, value or serious purpose, and causing harassment of, or distress to, staff of the public authority. The correctness of this guidance on the four “themes” was not specifically in issue before the Court of Appeal (para.60). Arden LJ considered that the UT had been right not to give any comprehensive or exhaustive definition of “vexatious”, but considered that there should be an objective standard and that the starting point was that vexatiousness “primarily involves making a request which has no reasonable foundation, that is, no reasonable foundation for thinking that the information sought would be of value to the requester, or to the public or any section of the public”, which she considered a high hurdle (para.67). A public authority had to consider all the relevant circumstances and take a rounded approach to the assessment of vexatiousness and for that reason Arden LJ concluded (as the UT had) that the FTT had erred in distinguishing between requests on the same subject matter that had an underlying grievance and those which did not (para.68).
The Craven appeal concerned, principally, the interaction of section 14(1) FOIA and regulation 12(4)(b) EIR. The first issue was whether there was any material difference between the test for a vexatious request and that for a manifestly unreasonable one. Arden LJ agreed with the UT that there was not (paras.77-78). Secondly, Arden LJ found that DECC had been entitled to rely upon regulation 12(4)(b) EIR even though this was not raised in its initial refusal notice – that point had been decided by the Court of Appeal in DEFRA v Birkett [2012] PTSR 1299 (para.80). Thirdly, Arden LJ held that sections 14(1) and 14(2) FOIA were distinct provisions and there was no requirement that a request be repetitious in order to be vexatious (para.82). Finally, Arden LJ agreed with the UT that there was nothing to prevent the costs of compliance being taken into account in determining whether a request was manifestly unreasonable (para.82) and there was also nothing to suggest that a request could not be vexatious in part, or solely, because of the costs of complying with it (para.84). It followed that the UT had not erred when remaking the decision by taking into account the costs of compliance (para.86).
Tom Cross appeared for the Information Commissioner in both appeals. Rachel Kamm appeared for Devon CC in the Dransfield appeal. James Cornwell appeared for the Department of Energy and Climate Change in the Craven appeal.
