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Recognising a vexatious request

Data inspection iStock 000008204804XSmall 146x219Andrew Gallie considers the approach public bodies should take towards dealing with vexatious freedom of information requests.

Some FoI requests are reasonable, some are tedious and difficult and some engage with the exemptions, but some are vexatious.

How can you recognise them and what should you do when you get one?

The starting point is straightforward. You do not have to comply with a vexatious request.

What is a vexatious request?

In the recent Court of Appeal case of Dransfield v Information Commissioner ([2015] EWCA Civ 454), it was decided that an authority had to consider all the relevant circumstances to reach a balanced decision and could consider any history of requests from the requester. Considering the high standard of vexatiousness, the Court said:

"Emphasis should be on an objective standard, and that the starting point is that 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 any section of the public"

The Court did not appear to disapprove of the Upper Tribunal's broad issues of vexatiousness which were:

  • burden - the number, breadth, pattern and behaviour of previous requests;
  • motive - the underlying rationale or justification for the request and that a request might start as reasonable but lead to further requests which become increasingly distant from the requester's starting point;
  • value of the request - which may be bound to the requester's motive;
  • obsessive conduct - that harasses or distresses staff or uses intemperate language or which makes unsubstantiated allegations or contains abuse.

The Court said that even a vengeful request could be non-vexatious if important information would be disclosed which ought to be publicly available and which promotes the FoI Act.

What should you do?

Any decision will need to be properly evidenced. Our experience is that refusing the vexatious request almost inevitably results in a complaint to the Information Commissioner's Office (ICO). The ICO will need to be persuaded that the decision was well thought through and evidenced. Thus, there is real merit in keeping an evidence log if there is a series of requests or behaviours and it is feared that a 'vexatious' decision might be required.

A single request can also be refused where it is fundamentally objectionable, for example if it contains threats against employees or is fundamentally racist, etc.

A vexatious request is just that. It is not a finding that a particular individual is vexatious and that any other request from them can automatically be refused. It is about the particular request. However, history and context will often be highly relevant.

Indicators identified by the ICO are useful, but must be taken into account in a balanced and thoughtful fashion. The indicators include:

  • abusive or aggressive language;
  • burden on the authority;
  • personal grudges;
  • unreasonable persistence;
  • unfounded accusations;
  • intransigence;
  • frequent or overlapping requests;
  • deliberate intention to cause annoyance;
  • scattergun approach;
  • disproportionate effort;
  • no obvious intent to obtain information;
  • futile requests;
  • frivolous requests.

These are indicators only and not a checklist. A judgement is required which must take into proper account the wider public interest. On occasion you might want to take a conciliatory approach, or seek to resolve the dispute before playing the 'vexatious' card. Similarly, there may be occasions when a 'vexatious' decision needs to be made early on.

However, a 'vexatious' decision should not be limited to the most extreme cases. We have found the ICO to be sympathetic when a decision is well thought through and backed up with cogent evidence.

The volume of FoI requests will increase and our advice is consistent - ensure that you have the right policies, that staff are trained and that documents are not created which might cause embarrassment or reputational loss.

So, before things become too difficult or challenging for you, your colleagues or your organisation, it may make sense to seek support and help.

Andrew Gallie is a Senior Associate at Veale Wasbrough Vizards. He can be contacted on 0117 314 5623 or This email address is being protected from spambots. You need JavaScript enabled to view it..