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Dransfield revisited

Data inspection iStock 000008204804XSmall 146x219Does the presence of public interest act as a barrier to a refusal of a request for information based on vexatiousness? Robin Hopkins reports on a ruling that should be welcomed by public bodies.

Quite a lot of the time, when a public authority refuses a request for information based on vexatiousness (under FOIA) or manifest unreasonableness (under the EIRs), its thinking is something like this:

‘We are not saying there is zero public interest in the information you seek; rather, we are saying that – in light of everything that has passed between us – the burden imposed by compliance with your request is disproportionate to the good it would do’.

That rationale is sensible. Isn’t it? Or did the judgment of Arden LJ in the Court of Appeal in Dransfield change things? Remember that, at paragraph 68, her Ladyship said this:

“Vexatiousness primarily involves making a request which has no reasonable foundation, that is no reasonable foundation for thinking that the information sought would be of value to the requester, or to the public or to any section of the public.”

Does that mean that – provided there is some interest (public or private) in the requested information – the request cannot be deemed vexatious or manifestly unreasonable? Such a reading of Dransfield would be of concern to many a public authority.

In a new judgment, Colin Parker v IC [2016] UKUT 0427 (AAC), the Upper Tribunal has put that concern to rest. See here: parker-ut.

The Court of Appeal’s judgment in Dransfield did not alter the judgment of the Upper Tribunal in the same litigation. The presence of some public interest is no automatic barrier to vexatiousness. See paragraph 45 of the judgment of the judgment of Upper Tribunal Judge Knowles QC:

“The lack of a reasonable foundation to a request was only the starting point to an analysis which must consider all the relevant circumstances. lt is clear from the Court of Appeal’s decision that the public interest in the information which is the subject of the request cannot act as a trump card so as to tip the balance against a finding of vexatiousness.”

So the rationale I sketched out at the outset remains sound. A word of warning to public authorities, however. No matter how sound the rationale, it is ultimately evidence that matters. At his paragraph 34, Judge Knowles said this:

“ln this case and in others where past dealings are of relevance, I find that an appropriately detailed evidential foundation addressing the course of dealings between the requester and the public authority is a necessary part of that assessment. A compendious and exhaustive chronology exhibiting numerous items of correspondence is not required but there must be some evidence, particularly from the lC, about the past course of dealings between the requester and the public authority which also explains and contextualises them.”

Robin Hopkins is a barrister at 11KBW. He can be contacted on 020 7632 8500, This email address is being protected from spambots. You need JavaScript enabled to view it. or via Twitter (@hopkinsrobin). This article first appeared on the set's Panopticon blog.

Chris Knight of 11KBW appeared for the ICO in Parker.


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