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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)

1. 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
2. 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”.’
3. 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
4. The complainant requested an internal review on 28 November 2014
   and questioned the ability of Ofcom to interrogate their information
   systems.
5. Ofcom responded on 23 December 2014 and refused to provide the
   requested information as their position remained unchanged.
   Scope of the case
6. 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’
7. 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
8. 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.
9. 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.
10. 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).

11. 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.
12. 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.
13. 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
14. 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
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15. 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.
16. 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.
17. 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.
18. 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.
19. 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’
20. 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.’
21. 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
22. 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’.
23. 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.
24. 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.’
25. 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
26. 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’.
27. 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.’
28. 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
29. 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
30. 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.
31. 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.
32. 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’.
33. 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.’
34. 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
35. 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
36. 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
37. 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.
38. 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

https://ico.org.uk/media/action-weve-taken/decision-notices/2011/614068/fs_50358047.pdf

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fs50605346.pdf (ico.org.uk)

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