“A manifestly unjustified, inappropriate or improper use of a formal procedure.”

That was the verdict of Judge Wikeley in the Upper Tribunal recently when considering an appeal which turned on the meaning of “vexatious” in relation to a Freedom of Information Act request.

The ICO has published new guidance on this area today, bringing greater clarity to one of the three circumstances under which an entire request can be rejected (alongside the cost limit rules and repeated requests).

It is an area made more complicated by the word ‘vexatious’ itself. It’s a word rarely used in day-to-day conversation, and what’s more, the Upper Tribunal earlier this year took the view that ordinary dictionary definition of the word was of limited use in the context of FOI requests (prompting their alternative suggestion that you see in the introduction above).

Much of our guidance focuses on what is meant by the term, and more specifically, what a public authority should do to satisfy itself that a request is vexatious.

The short answer to that is that the public authority should be asking itself whether the request is likely to cause a disproportionate or unjustified level of disruption, irritation or distress. The longer answer is, of course, to read the guidance, though the words of the Upper Tribunal on this still ring true: there is no magic formula.

An area of the guidance sure to attract a lot of attention is our list of typical key features of a vexatious request. It’s by no means a definitive or limiting list, but it does give a feel for the type of cases we’d feel could fall under the term.

Graphical representation of typical key features of a vexatious request

The guidance also looks at alternative approaches to deeming a request vexatious, the evidence the ICO would expect public authorities to provide in the event of a complaint to the Commissioner, and touches on the issues of round robin requests and ‘fishing’ expeditions. There are also several examples of tribunal decisions included as an appendix.

We’ve taken on board some of the concerns expressed during the Justice Committee’s post-legislative scrutiny of FOIA. There’s more focus on the burden and impact that handling such requests has on the public authority.

We’re supporting the advice with new guidance on repeated requests and on the Environmental Information Regulations equivalent of ‘manifestly unreasonable exceptions‘. We’ve also updated our ‘for the public’ webpages to reflect what we’re telling public authorities, including a new list of ‘dos and don’ts’ to help requesters get the best result from making a legitimate request.

Graham SmithGraham Smith Deputy Commissioner and Director of Freedom of InformationOne of two Deputy Commissioners, Graham has lead responsibility for promoting and enforcing Freedom of Information.
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