The Code of Practice under section 45 of the Act allows ministers to set out the practice that they
consider be desirable for public authorities to follow in discharging their obligations under Part 1 of
the Act. It must, in particular, include provision relating to (a) advice and assistance to requestors,
(b) the transfer of requests between public authorities, (c) consultation with third parties, (d) the
11 Innes v. Information Commissioner & Buckinghamshire County Council, [2014] EWCA Civ 1086 judgement
12 http://webarchive.nationalarchives.gov.uk/20141203235408/http:/www.justice.gov.uk/
downloads/information-access-rights/foi/code-of-practice-datasets.pdf
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inclusion in contracts entered into by public authorities of terms relating to the disclosure of
information, and (e) complaints procedures.
The IC is required by section 47 of the Act to promote the observance of the provisions of the
Code, and he can issue a practice recommendation under section 48 to any public authority whose
performance does not conform to the Code.
We note that the Code of Practice under section 45 was issued in 2004, a year before the Act
came into operation, and it has not been updated or revised since then. We think the government
should review section 45 of the Act to ensure that the range of issues on which guidance can be
offered to public authorities under the Code is adequate. For example, at present it is unclear
whether the Code can offer guidance to public authorities on the operation of exemptions or the
public interest test. We also consider that the Code should be reviewed and updated to take
account of the ten years of operation of the Act’s information access scheme.
As noted above, although we have recommended the abolition of the “qualified person”
requirement in section 36, we consider that it is important that sufficiently senior people within
public authorities have oversight of the Act. For example, in relation to applying section 36 we
consider that a senior manager should make the decision about whether section 36 should be
relied upon. Revised guidance under the Code of Practice can offer guidance on the appropriate
levels of authority required for internal decisions under the Act.
Recommendation 19: That the government reviews section 45 of the Act to ensure that the range
of issues on which guidance can be offered to public authorities under the Code is adequate.
The government should also review and update the Code to take account of the ten years of
operation of the Act’s information access scheme.
Vexatious requests
Section 14(1) of the Act allows a public authority to refuse to respond to a request if it is
“vexatious”. “Vexatious” is not defined in the Act, and there has been some considerable confusion
about its meaning. Public authorities told us that they had been reluctant to use it because doing
so could be more labour-intensive than simply responding to a request, and that labelling a request
as “vexatious” tended to upset the requestor leading to further requests and correspondence.
The approach of the IC in his guidance (“When can a request be considered vexatious or
repeated?”) on refusing to respond to a request because it was vexatious involved public authorities
having to provide “relatively strong arguments” under more than one of the following factors:
Can the request fairly be seen as obsessive?
Is the request harassing the authority or causing distress to staff?
Would complying with the request impose a significant burden in terms of expense and
distraction?
Is the request designed to cause disruption or annoyance?
Does the request lack any serious purpose or value?
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As many respondents explained, the interpretation of a vexatious request has recently been
clarified by case law and section 14(1) had developed into a much broader and more effective tool
for public authorities. The Upper Tribunal’s decision in the case of Information Commissioner v
Dransfield [2012] UKUT 440 (AAC) (28 January 2013)13 set out clear guidance on how to
determine if a request is vexatious. The Upper Tribunal took the view that:
“The purpose of section 14…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”
The Upper Tribunal rejected an interpretation of the IC’s guidance that viewed it as saying that a
request which triggered only one of the IC’s five factors could not be vexatious. One particular
factor (such as burden) exemplified to a significant degree could be sufficient to render a request
vexatious.
The Upper Tribunal went on to identify four broad issues or themes: (1) the burden (on the public
authority 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 emphasised
however that these factors were not intended to be exhaustive, or to create a “checklist” approach.
The Commission is fully supportive of the appropriate use of section 14 to prevent public
authorities from being burdened by vexatious requests. We also accept that public authorities may
benefit from stronger guidance encouraging the use of this provision where appropriate. Many
authorities did not appear to understand that trivial or frivolous requests could be deemed
vexatious. In his written evidence, the IC suggested
“…strengthening the guidance on section 14 by putting it on a statutory basis in a special
code of practice issued under section 45. This could reduce any uncertainty that public
authorities may feel about the current approach and the risk of the Commissioner’s guidance
being overturned by the courts.” (paragraph 62)
We agree, and recommend that the section 45 Code of Practice includes guidance encouraging
public authorities to use section 14 to refuse vexatious requests where appropriate.
Recommendation 20: That the government provides guidance, in a revised Code of Practice
issued under section 45, encouraging public authorities to use section 14(1) in appropriate cases.
Resources of the Information Commissioner
Like other public authorities, the budget of the IC has been reduced in recent years. Information
which he submitted to us at our request after his oral evidence session showed that his budget has
been reduced year-on-year and is now frozen. This is in spite of the volume of requests made
under the Act, and the EIRs, increasingly significantly over the same period.
13 Subsequently confirmed in Dransfield v The Information Commissioner [2015] EWCA Civ 454 (14 May 2015)
