Unbelievable. Obviously, there is a lot they have to hide.
Reference: FS50568116
1
Freedom of Information Act 2000 (FOIA)
Decision notice
Date: 23 March 2015
Public Authority: Office of Communications
Address: Riverside House
2a Southwark Bridge Road
London
SE1 9HA
Decision (including any steps ordered)
- The complainant made a request for the subject line of emails which
contained both the words ‘amateur’ and ‘interference’. The Office of
Communications (Ofcom) refused the request as vexatious under section
14(1) of the FOIA. The Commissioner’s decision is that Ofcom has
correctly applied the vexatious provision at section 14(1). He does not
require any steps to be taken.
Request and response - On 4 November 2014 the complainant made a request under the FOIA:
‘Please provide the following:
The full subject line of any emails where the subject line contains both
the words “Amateur” and “Interference” (case insensitive) and were
sent in the calendar year 2013. This relates to what you call “hobby
radio”.’ - Ofcom responded on 27 November 2014 stating that it considered the
request to be vexatious and therefore covered by section 14(1) of the
FOIA. The public authority referred the complainant to previous similar
requests of 27 September, 19 November and 12 December 2013 which
were refused under section 12 of FOIA. Ofcom also referred to this
request as a ‘fishing expedition’.
Reference: FS50568116
2 - The complainant requested an internal review on 28 November 2014
and questioned the ability of Ofcom to interrogate their information
systems. - Ofcom responded on 23 December 2014 and refused to provide the
requested information as their position remained unchanged.
Scope of the case - The complainant wrote to the Commissioner on 18 January 2015 to
complain about the way his request for information had been handled:
‘My complaint is two-fold, 1) that Ofcom’s decision to treat me as
vexatious given the evidence provided is manifestly unreasonable and 2)
that Ofcom have publicly lied about their ability to interrogate their
email system and thus failed to discharge their obligation under DPA’ - The Commissioner has examined the request and related
correspondence from both the complainant and Ofcom. The
Commissioner has considered the scope of the case to be whether
Ofcom is entitled to rely on the vexatious provision at section 14(1) of
the FOIA.
Reasons for decision - Section 14(1) of FOIA states that section 1(1) does not oblige a public
authority to comply with a request for information if the request is
vexatious. There is no public interest test. - The term “vexatious” is not defined in the FOIA. The Upper Tribunal
considered the issue of vexatious requests in the case of the Information
Commissioner v Devon CC & Dransfield1
. The Tribunal commented that
vexatious could be defined as the “manifestly unjustified, inappropriate
or improper use of a formal procedure.” The Tribunal’s definition clearly
establishes that the concepts of proportionality and justification are
relevant to any consideration of whether a request is vexatious. - The Upper Tribunal also found it instructive to assess the question of
whether a request is truly vexatious by considering four broad issues:
1 GIA/3037/2011
Reference: FS50568116
3
(1) the burden imposed by the request (on the public and its staff); (2)
the motive of the requester; (3) the value or serious purpose of the
request; and (4) any harassment or distress of and to staff. The Upper
Tribunal did, however, also caution that these considerations were not
meant to be exhaustive. Rather, it stressed the
“importance of adopting a holistic and broad approach to the
determination of whether a request is vexatious or not, emphasising
the attributes of manifest unreasonableness, irresponsibility and,
especially where there is a previous course of dealings, the lack of
proportionality that typically characterise vexatious requests”
(paragraph 45).
- In the Commissioner’s view, the key question for public authorities to
consider when determining if a request is vexatious is whether the
request is likely to cause a disproportionate or unjustified level of
disruption, irritation or distress. - The Commissioner has identified a number of “indicators” which may be
useful in identifying vexatious requests. These are set out in his
published guidance on vexatious requests2
. The fact that a request
contains one or more of these indicators will not necessarily mean that it
must be vexatious. All the circumstances of a case will need to be
considered in reaching a judgement as to whether a request is
vexatious. - Ofcom has identified several indicators as being present within the
request. It considered that the request was a repeat request, was
obsessive, caused distress to staff, and imposed a significant burden
designed to cause disruption or annoyance to Ofcom.
The request is obsessive – Unreasonable persistence - The Commissioner would characterise an obsessive request as one
where the requester is attempting to reopen an issue which has already
been comprehensively addressed by the public authority, or otherwise
subjected to some form of independent scrutiny.
2
http://www.ico.org.uk/~/media/documents/library/Freedom_of_Information/
Detailed_specialist_guides/dealing-with-vexatious-requests.ashx
Reference: FS50568116
4
- In the Commissioner’s view, the test to apply here is reasonableness.
Would a reasonable person describe the request as obsessive in the
circumstances? For example, the Commissioner considers that although
a request in isolation may not be vexatious, if it is the latest in a long
series of overlapping requests or other correspondence then it may form
part of a wider pattern of behaviour that makes it vexatious. - The Commissioner accepts that at times there is a fine line between
obsession and persistence and although each case is determined on its
own facts, the Commissioner considers that an obsessive request can be
most easily identified where a complainant continues with the request(s)
despite being in possession of other independent evidence on the same
issue. However, the Commissioner also considers that a request may
still be obsessive even without the presence of independent evidence. - Ofcom has explained that it has a long standing and close working
relationship with the Radio Society of Great Britain (RSGB), which
represents the needs and interests of ‘hobby radio’ enthusiasts, of which
the complainant is one. - As of 5 March 2015, Ofcom had 25 requests for information from the
complainant on their case management system, all relating to hobby
radio and associated issues. - This request is the same as his previous request of 27 September 2013:
‘Please provide the following:
The full subject line of any emails where the subject line contains both
the words “Amateur” and “Interference” (case insensitive) and were
sent between January 1st 2013 and September 27th 2013’ - Ofcom applied section 12 (costs) and the complainant sent a refined
request on 19 November 2013:
‘please supply the email subjects for the month of August 2013 and
limited to a cost of £450.’ - Ofcom again applied section 12 and the complainant sent a further
request on 12 December 2013:
‘Please would you tell me how many hours obtaining one month’s worth
of emails would take?
Please also tell me what email server you are using and whether this
server is hosted by Ofcom or externally.
How many email accounts are there?’
Reference: FS50568116
5 - On 11 December 2013, Ofcom again applied section 12:
‘The words “amateur” and “interference” can be attributed to any team
within Ofcom and to search through all emails for each member of staff
would take an inordinate amount of time and resources, even just for
one month’. - Section 14(2)of FOIA states: Where a public authority has previously
complied with a request for information which was made by any person,
it is not obliged to comply with a subsequent identical or substantially
similar request from that person unless a reasonable interval has
elapsed between compliance with the previous request and the making
of the current request. - Ofcom acknowledge that this request is identical to the one submitted in
September and November 2013. Ofcom have stated that ‘a reasonable
interval has not elapsed – the nature of the search, the type of
information requested and the process Ofcom would have to go through
would be identical.’ - The Commissioner has taken into account the context and background
to the request and considers that the complainant’s persistence has
reached the stage where it could reasonably be described as obsessive.
The request is designed to cause disruption - Ofcom have stated that it considers the complainant to be submitting
requests to cause disruption. As the request is for the subject line only
(and not the content of the emails) it is of limited value and a ‘fishing
expedition’. - Ofcom have stated in their November 2014 response to the complainant
that ‘we consider that the request would impose a significant burden on
Ofcom as we would be required to sift through a substantial volume of
information to isolate and extract the relevant information. We did invite
you in our response of 25 October 2013 to submit a narrower and more
focussed request, however your request of 19 November 2013 remained
too wide.’ - Therefore Ofcom have on a number of occasions provided an
explanation on the work needed to search, sift, isolate and extract the
information to answer the request. The Commissioner has considered
the complainant’s complaint that ‘Ofcom have publicly lied about their
ability to interrogate their email system and thus failed to discharge
their obligation’. However, the Commissioner will not consider the
functionality of particular email systems and is satisfied that there is no
evidence to suggest that Ofcom have not told the truth.
Reference: FS50568116
6 - The Commissioner has considered all the correspondence presented to
him and found that there is sufficient evidence to suggest that the
request was vexatious in that it is without merit or value to the public.
The request has the effect of harassing the public authority and
causing distress to staff - The Commissioner considers that a requester is likely to be abusing the
section 1 rights of the FOIA if he uses FOIA requests as a means to vent
anger at a particular decision, or to harass and annoy the authority, for
example by submitting a request for information which he knows to be
futile. When assessing whether a request or the impact of dealing with it
is justified and proportionate, it is helpful to assess the purpose and
value of the request. - The FOIA is generally considered applicant blind, but this does not mean
that a public authority may not take into account the wider context in
which the request is made and any evidence the applicant has imparted
about the purpose behind their request. - In this case, following from the previous requests in 2013 Ofcom stated
that ‘‘it would cause disproportionate and unjustified disruption and
irritation to even make enquiries of the appropriate team, let alone that
it would take in excess of 18 hours to find the requested information’. - In the complainant’s correspondence with Ofcom he has ‘frequently
made personal allegations against Ofcom colleagues. He also has a
significant online presence through which he asks ‘Ofcom – Corrupt or
incompetent’. It is clear from his blog and our own correspondence …
that the intention of his requests for information is not to bring an
important issue into the public sphere, but to pursue a personal agenda.’ - The Commissioner has considered the purpose of the request in the
context of the other correspondence and taking into account the
obsessive persistence of the complainant, finds that the effect is to
harass the public authority and cause distress to members of staff.
The Commissioner’s decision - Taking into consideration the findings of the Upper Tribunal that a
holistic and broad approach should be taken in respect of section 14(1),
the Commissioner has concluded that Ofcom was correct to find the
request vexatious. He has balanced the purpose and value of the
request against the detrimental effect on the public authority and is
satisfied that the request is both obsessive and has the effect of
harassing the public authority. Accordingly, the Commissioner finds that
section 14(1) has been applied appropriately in this instance.
Reference: FS50568116
7
Right of appeal - Either party has the right to appeal against this decision notice to the
First-tier Tribunal (Information Rights). Information about the appeals
process may be obtained from:
First-tier Tribunal (Information Rights)
GRC & GRP Tribunals,
PO Box 9300,
LEICESTER,
LE1 8DJ
Tel: 0300 1234504
Fax: 0870 739 5836
Email: GRC@hmcts.gsi.gov.uk
Website: http://www.justice.gov.uk/tribunals/general-regulatorychamber - If you wish to appeal against a decision notice, you can obtain
information on how to appeal along with the relevant forms from the
Information Tribunal website. - Any Notice of Appeal should be served on the Tribunal within 28
(calendar) days of the date on which this decision notice is sent.
Signed ………………………………………………
Pamela Clements
Group Manager
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
