25 October 2013

Case Reference Numbers: IRQ0514834 and IRQ0515481
Dear Mr Dransfield

I am writing further to our recent acknowledgement of your requests for information, given under the separate references above. As you know, we are dealing with your requests under the Freedom of Information Act 2000 (FOIA). We are now in a position to provide our response.

On 30 September, you requested:

“Please provide me with specific details how many times the ICO have issued vexatious decisions which have been reliant upon GIA/3037/2011 Dransfield vICO”.
In a second email of the same date you also requested:

“all ICO decisions involving GIA/3037/2013 Dransfield v ICO”.

The requests are for essentially the same information, apart from the ‘GIA’ case reference. The case reference GIA/3037/2013 is not one we recognise. It is therefore understood that you are requesting to know how many decision notices the ICO has served which rely on the outcome of the Upper Tribunal case GIA/3037/2011 (Information Commissioner v Devon CC and Dransfield), and to receive copies of those decision notices.

This request was allocated our case reference IRQ0514834.

On 3 October, you requested:
“I make particular reference to the Contra Cabal URL website attached and the red highlighted section.
Please treat this as a request for a copy of Mr Smith’s reply”

This request was allocated our case reference IRQ0515481.

We are refusing these requests as vexatious under the provisions of section 14(1) of FOIA.

You refer to the findings of the Upper Tribunal in the case of Dransfield, which gives a definitive, and legally binding, interpretation of section 14(1) of FOIA. The Upper Tribunal’s decision on the application of section 14 of FOIA to vexatious requests is therefore not only significant, but also legally binding on the ICO.

We are aware that there is an outstanding application for permission to appeal the Upper Tribunal’s decision to the Court of Appeal. However, that application for permission has not yet been determined, far less has the Upper Tribunal’s decision been overturned. Therefore at present the Upper Tribunal’s decision remains binding authority.

Some findings from the Upper Tribunal (UT) are repeated below, because they are directly relevant to the present situation:

  • […] the purpose of section 2 and Part II is to protect the information because of its inherent nature or quality. The purpose of section 14, on the other hand, must be to protect the resources (in the broadest sense of that word) of the public authority from being squandered on disproportionate use of FOIA” (paragraph 10);
  • […] Thus an important aspect of the balancing exercise may involve consideration of whether or not there is an adequate or proper justification for the request” (paragraph 26);
  • “for the reasons above I agree with the overall conclusion that the FTT in Lee reached, namely that “vexatious” connotes “manifestly unjustified, inappropriate or improper use of a formal procedure” (paragraph 27);
  • “In this context it is important to bear in mind that the right to information under FOIA is a significant but not an overriding right in a modern democratic society. As has already been noted, it is a right that is qualified or circumscribed in various ways. Those restrictions reflect other countervailing public interests, including the importance of an efficient system of public administration. Thus section 14 serves the legitimate public interest in public authorities not being exposed to irresponsible use of FOIA, especially by repeat requesters whose inquiries may represent an undue and disproportionate burden on scarce public resources” (paragraph 35);

The UT also quotes a previous Upper Tribunal where it was stated that:

  • “Inherent in the policy behind section 14(1) is the idea of proportionality. There must be an appropriate relationship between such matters as the information sought, the purpose of the request, and the time and other resources that would be needed to provide it.”

In the present circumstances, it is the ICO’s position that responding to your requests will require time and effort on the part of ICO staff which is not justified by the value to be derived from the information requested.

In the specific case of your 30 September request, the ICO publishes its decision notices (DNs) on the ICO website. These are easily searchable by a variety of means, including the ‘exemption’ under consideration. It would therefore be a straightforward matter for you to search for all DNs on the topic of section 14 of FOIA, which post-date the UT case GIA/3037/2011 and read the DN to see whether or to what extent that case was relied on. Therefore, there can be no justification for the ICO using its own staff and financial resources to undertake this task for you, hence the findings of the UT at paragraphs 26 and 35, reproduced above, are directly relevant.

For similar reasons, your 3 October request is also refused. In light of the legal status of the UT decision as binding on the ICO unless and until it is overturned by a superior court, then the assertions made on the ‘Contra Cabal’ website about the lawfulness of the ICO’s actions in following the UT decision are simply mistaken and based on a false premise. Engaging with this matter is therefore of no value and to do so would be to ‘squander’ the ICO’s resources (see UT paragraph 10, above).

In summary: we are satisfied that there is no value to you or any other party in any response the ICO could provide to your requests, which would justify the time and cost to the ICO of providing that response. For this reason, your requests are refused as vexatious under the provisions of section 14(1) of FOIA.

This concludes our response to your request.

If you are dissatisfied with the response you have received and wish to request a review of our decision or make a complaint about how your request has been handled you should write to the Information Governance Department at the address below or e-mail informationgovernance@ico.org.uk

Your request for internal review should be submitted to us within 40 working days of receipt by you of this response. Any such request received after this time will only be considered at the discretion of the Commissioner.

If having exhausted the review process you are not content that your request or review has been dealt with correctly, you have a further right of appeal to this office in our capacity as the statutory complaint handler under the legislation. To make such an application, please write to the First Contact Team, at the address below or visit the ‘Complaints’ section of our website to make a Freedom of Information Act or Environmental Information Regulations complaint online.

A copy of our review procedure is available here.

Yours sincerely

Steven Dickinson Lead Information Governance Officer