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Commissioner updates guidance on dealing with vexatious requests

News release: 1 April 2013

The Scottish Information Commissioner, Rosemary Agnew, has updated her briefing on dealing with vexatious requests under section 14 of the Freedom of Information (Scotland) Act 2002.

The updated briefing emphasises that authorities must not use "vexatious" provisions lightly.  While it explains they have more flexibility to use the section 14(1) provision it also sets out that the Commissioner expects them to give sound reasoning supported by clear evidence.

The term "vexatious" is well-established in law.  During the passage of the Freedom of Information Bill, parliamentarians acknowledged that its interpretation in FOI cases would evolve over time in the light of experience and precedent.  The Commissioner's revised briefing captures learning from recent cases.

There are several factors which may contribute to a request being considered vexatious.  The main changes in the new briefing are as follows:

  1. "Significant burden on the public authority" becomes one factor rather than a first test.  So, for example, a request which has no serious purpose or value may be a vexatious request, even though it would not take significant resources to respond to.  When claiming significant burden, authorities are expected to quantify how responding to the information request will divert resources from other statutory functions, and justify why those functions take precedent over dealing with the request.
  2. A particular emphasis is laid on the need for an authority to provide well-reasoned evidence when claiming a request is vexatious.
  3. Authorities are encouraged to engage with requesters to help them understand why they consider a request to be vexatious, as the requester themselves may not see it this way.

Commenting as the new briefing was published, Rosemary Agnew said:

"These changes do not undermine the critical fact that people have a right to information.  What they do is bring the briefing in line with our own experience of dealing with appeals.  Interpretation of section 14(1) should be flexible enough to allow it to be used in the right circumstances by authorities.  However, denying an individual their right make an information request should never be done lightly, and authorities must provide robust evidence to justify this."

The new briefing is available on the Commissioner's website at: Briefing: Section 14 - Vexatious or Repeated Requests

ENDS

For further information contact the Commissioner's Media Team on 01334 464610, out of hours on 07976 511752, or email media@itspublicknowledge.info

 

Notes to Editors:

What the law says

1.Under section 14(1) of the Freedom of Information (Scotland) Act 2002 (FOISA), a Scottish public authority does not have to comply with a request for information if the request is "vexatious".

2.Section 14(2) also means that an authority is not obliged to comply with a request which is identical or substantially similar to a previous request, unless a reasonable period of time has passed.

3.See full text of section 14 here:http://www.legislation.gov.uk/asp/2002/13/section/14

4.Regulation 10(4)(b) of the Environmental Information (Scotland) Regulations 2004 (the EIRs), permits a Scottish public authority to refuse a request for environmental information if it is "manifestly unreasonable".

5.Regulation 10(4)(c) of the EIRs also permits an authority to refuse a request which is formulated in too general a manner, as long as the authority has provided reasonable advice and assistance to the applicant (regulation 9).

6.See full text of the EIRs regulation 10 here: http://www.legislation.gov.uk/ssi/2004/520/regulation/10/made

"Vexatious" and "manifestly unreasonable"

7.There is no definition of "vexatious" in FOISA.  The Commissioner's briefing sets out a number of factors which may contribute to request being vexatious.

8.In the previous briefing, the request generally had to impose a "significant burden" on the authority (e.g. in terms of cost), plus one or more other factors if and where applicable.

9.The new briefing suggests one or several of a range of factors may apply, of which "significant burden" is only one.  Other impacts may be equally important, e.g. if the request has the effect of harassing the authority.

10.Similarly, there is no definition of "manifestly unreasonable" in the EIRs.

11.The same factors are likely to apply when deciding if a request for environmental information is "manifestly unreasonable" under the EIRs.

Providing evidence

12.The new briefing emphasises the need for an authority to provide clear, specific, well-argued evidence if it wants to apply section 14(1) (or regulations 10(4)(b) or (c)).

13.It is not the intent of section 14(1) to undermine an individual's legitimate right to information, therefore the onus is on the authority to justify applying the section 14(1) provision.

The Scottish Information Commissioner

14.The Scottish Information Commissioner is a public official appointed by Her Majesty the Queen on the nomination of the Scottish Parliament.

15.The Commissioner is responsible for promoting Scotland's freedom of information laws.

16.The Commissioner: investigates applications and issues legally enforceable decisions; promotes good practice amongst public authorities; and provides the public with information on their rights.

17.The current Scottish Information Commissioner is Rosemary Agnew.

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