Mark Bill v Information Commissioner [2025] UKFTT 361 (GRC)

[2025] UKFTT 00361 (GRC)Case Reference: EA/2023/0184
First-tier Tribunal
General Regulatory Chamber
Date 28 March 2025
Information Rights
Determined on the papers on 14 March 2025
Before
Judge jonathan scherbel-balltribunal member marion saundersTribunal member emma yates
Between
mark billAppellantINFORMATION COMMISSIONERRespondentDecision:The Appeal is refused.REASONS

Introduction

[1]This is an appeal against a Decision Notice of the Information Commissioner (the “Commissioner”) dated 30 March 2023 (Reference IC-216067-C8T0) (the “Decision Notice”). The appeal is brought under s.57(1) of the Freedom of Information Act 2000 (“FOIA”).[2]This appeal concerns whether the Commissioner was correct to determine in the Decision Notice that the Appellant’s request for information made on 7 July 2022 for details of 49 contracts held by Liverpool University Hospitals NHS Foundational Trust (the "NHS Trust”) was vexatious within the meaning of s.14 FOIA.[3]The parties both agreed that this appeal could be determined on the papers. The Tribunal agrees that it is fair, appropriate and in keeping with the overriding objective for the appeal to be determined on the papers.

Background to the Appeal

[4]On 7 July 2022 the Appellant requested details of 49 contracts from the NHS Trust. These contracts had previously been identified by the NHS Trust in correspondence with the Appellant. Specifically the request (the “Request”) stated: “I request details of the contracts outlined in the invoices or otherwise provide details as to what actual goods and services were provided for the sums involved.” (underlining added).[5]Initially, the NHS Trust refused to comply with the Request, citing the cost burden in s.12 FOIA. The Appellant appealed successfully to the Commissioner. In his Decision Notice dated 8 December 2022, the Commissioner ruled that the NHS Trust could not rely on s.12 FOIA because their calculation of the time burden for the purposes of that section could not include time spent considering and applying redactions for necessary exemptions under Part II of FOIA. The Commissioner therefore directed the NHS Trust to provide a fresh response under FOIA which did not rely on s.12 FOIA.[6]On 6 January 2023, the Trust subsequently issued a fresh response providing certain information in relation to the part of the Request which is not underlined in paragraph 4 above. However, the NHS Trust stated it held no further information in respect of the first part of the request. This was confirmed following an internal review on 10 February 2023.[7]The Appellant complained to the Commissioner about this revised response. In the Decision Notice, the Commissioner held that the NHS Trust’s position on whether it held information under s.1 FOIA was mistaken, because the Request was for the 49 contracts in their entirety, which the Commissioner considered that the NHS Trust did hold. However, the Commissioner held that s.14 FOIA applied to this request. The central basis for this conclusion was that the Commissioner considered that “providing the 49 contracts in full would impose a grossly oppressive burden upon the trust”. The Commissioner therefore did not require the NHS Trust to take further action.[8]The Appellant appealed the Decision Notice to the First-Tier Tribunal by Appeal Notice dated 1 April 2023.

This Appeal

[9]The Grounds of Appeal filed by the Appellant are brief. They can be summarised as follows:a. The requested information is of interest to the public. In this regard, the context is important. In particular the size of the NHS Trust, its position in the local community, the Trust’s poor performance, including changes and reorganisation of the NHS Trust, and “the fiasco over the new build and Carill[i]on collapse, the planned demolition of 5 buildings, and especially changes in relation to all of this.”b. There is “some importance” in details of the contracts rather than general contractual summaries being made public.c. The Appellant believes that this information should be released as a matter of course, as part of the NHS Trust’s obligations of openness and transparency, as well as the NHS’s more general commitment to openness and transparency.[10]The Commissioner opposes the appeal. In his grounds of appeal, the Commissioner argues that:a. The law on the application of s.14 FOIA was clarified by the Upper Tribunal in Information Commissioner v Devon CC and Dransfield [2012] UKUT 440 (AAC) (“Dransfield”). In Dransfield at [28] and [45], the Upper Tribunal indicated that a Tribunal may have regard to four core issues when assessing if s.14 FOIA applies. These are(i) the burden on the public authority,(ii) the motive of the requester,(iii) the value or serious purpose of the request and(iv) any harassment of, or distress caused to, the public authority’s staff. However, these considerations are not exhaustive, and it is important to adopt a “holistic and broad approach to the determination of whether a request is vexatious”. The Tribunal in Dransfield accepted that the context and history in which a request was made may be a major factor in determining whether a request was vexatious.b. The Commissioner considers that following Dransfield, a key consideration therefore is whether a request is likely to cause a disproportionate or unjustified level of disruption, irritation or distress. This will involve weighing the purpose and value of the request and balancing this against the evidence about the impact on the authority.c. The Upper Tribunal’s decision in Dransfield was not disturbed by the Court of Appeal on appeal [2015] EWCA Civ 454 (“Dransfield CA”). The Court of Appeal agreed that there was no comprehensive or exhaustive definition, but the focus should be on an objective standard and that the “starting point is that vexatiousness primarily involves 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.”d. The view that Dransfield CA did not disturb the Upper Tribunal’s approach in Dransfield has since been confirmed by the Upper Tribunal in Parker v Information Commissioner [2016] UKUT 0427 (AAC) (“Parker”). At paragraph 30, the Upper Tribunal emphasised the need for a holistic approach which included recognising that the value of the request was an important but not the only factor.e. The Commissioner recognises that there is a value and purpose behind the Request but considers that this is adequately addressed in monthly transparency reports provided by the NHS Trust. In addition, the NHS Trust has also provided certain information relating to the 49 contracts which adequately satisfies the public interest in how the NHS Trust spends public funds.f. Even if there is a wider genuine purpose and value to the Request from the disclosure of the contracts, it is not sufficient to say that just because a request may have such a purpose and value, the Request therefore has a ‘reasonable foundation’. The Commissioner relies on paragraph 28 of Parker where the Upper Tribunal held that “It is clear from the Court of Appeal’s decision [in Dransfield] 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.” Accordingly, it is necessary to weigh any purpose and value of the Request against the impact on the authority of complying with the Request when viewed in light of the context and history of the request.g. The Appellant has not sought to dispute the Commissioner’s reasoning that complying with the Request would create a disproportionate burden for the NHS Trust. The Commissioner accepts that it would be necessary to review all of the 49 documents which are likely to contain information exempt under s.43 FOIA (prejudice to commercial interests). The NHS Trust has conducted a sampling exercise which showed that to review one 229 page contract for relevant exemptions took approximately 2 hours. If that time were replicated for each contract, it would take approximately 98 hours.h. In this context, the Commissioner relies on the decision of the Upper Tribunal in Cabinet Office v Information Commissioner and Ashton [2018] UKUT 208 (AAC) at [27] that:
“in some cases, the burden of complying with the request will be sufficient, in itself, to justify characterising the request as vexatious, and such a conclusion is not precluded if there is a clear public interest in the information requested. Rather, the public interest in the subject matter of a request is a consideration that itself needs to be balanced against the resource implications of the request, and any other relevant factors, in a holistic determination of whether a request is vexatious.” i. The Commissioner contends that this is a case where the burden of compliance in itself justifies characterising the Request as vexatious. j. In any event, the burden of compliance outweighs the purpose and value of the Request on the facts of this case. This is because (i) compliance would impose a real and significant burden upon the NHS Trust which would distract it from its other necessary functions in the context of significant resources pressures in the NHS, (ii) a reasonable person would conclude that the burden imposed on the Trust by the Request would be unwarranted and disproportionate to is value, especially when considered in the context and history of the request. k. From the context and history of the request, the Commissioner considers that compliance is likely to lead to further communication and requests from the Appellant with consequential burden on the Trust and its staff. Dransfield at [39] makes clear that that “the number, breadth, pattern and duration of previous requests may be a telling factor”
. In this case, the Commissioner understands from the NHS Trust’s letter of 23 March 2023 that in less than 12 months, the applicant has submitted 33 EIR/FOIA requests, 9 of which had been in the previous 60 days. The Trust further anticipates that the pattern and duration of these requests indicates they are likely to continue. In addition, the Commissioner understands that the applicant has submitted four requests previously about the same topic. There has also been frequent correspondence, and new requests made before the NHS Trust has been able to address earlier enquiries, complete internal reviews, and during ICO investigations. The NHS Trust anticipates that this will continue.

The law

[11]The Tribunal’s jurisdiction to consider this appeal is set out in s.58 FOIA. If the Tribunal considers that the notice against which the appeal is brought is not in accordance with the law or, if it involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner. In any other case, the Tribunal shall dismiss the appeal.[12]The Tribunal must consider whether the provisions of FOIA have been correctly applied and is not bound by the Commissioner’s views or findings but must arrive at its own view, giving such weight to the Commissioner’s views and findings as it deems fit in the particular circumstances - Guardian Newspapers & Brooke v Information Commissioner and BBC(EA/2006/0011 & 0013) at [14(3)].[13]When determining the application of s.14 FOIA, the following general propositions can be derived from the case law:a. First, one of the main purposes of FOIA is to provide citizens with a qualified right to access to information and therefore a means of holding public authorities to account – Dransfield at [25].b. Second, vexatiousness is not defined in s.14 FOIA, but the question is whether the request is vexatious, not the person making the request – see Boyce v Information Commissioner [2025] UKFTT 7 (GRC).c. Third, the focus and rationale for s.14 FOIA is on protecting public authorities resources by being squandered in the disproportionate use of FOIA – Dransfield at [10]. Proportionality therefore lies at the heart of any assessment of whether a requested is vexatious under s.14 FOIA.d. Fourth, the use of s.14 FOIA is a high threshold which must be judged to an objective standard – Dransfield CA at [68] and [72], Parker at [45] and [50].e. Fifth, whether a request is vexatious requires an assessment of all the circumstances surrounding the request to reach a value judgment as to whether the request in issue is vexatious. This is necessarily a holistic assessment – Dransfield at [45] and [82], Parker at [27].f. Sixth, while the starting point is to consider the value or public interest in the request (Dransfield CA at [68]), the public interest or value (even to a private interest) in the requested information is not a trump card, but must be considered as part of a balancing exercise with the burden placed on a public authority – Ashton at [27], Parker at [45].g. Seventh, a request can have value or serious purpose even if it only serves a private interest rather than a public one. A request should therefore not be dismissed as vexatious purely for the absence of public interest, without considering the other factors - Soh v Information Commissioner and Imperial College London [2016] UKUT 0249 (AAC) at [80] – [81] (“Soh”)h. Eighth, the fact that there was once a genuine dispute or public interest, does not mean that this public interest cannot be diminished or extinguished through multiple requests – this can be “vexatiousness by drift”– Oxford Phoenix Innovation Limited v Information Commissioner and MHPRA [2018] UKUT 192 (AAC) at [87].i. Ninth, when considering all the circumstances, important but non-exhaustive criteria to focus on may include(i) the burden imposed by the request on the public authority,(ii) the motive of the requester,(iii) the value of serious purpose of the request and(iv) harassment or distress to staff – Dransfield at [28].j. Tenth, a request can be vexatious within the scope of s.14 FOIA because, in whole or in part, of the costs of complying with a request – Dransfield CA at [86]. The costs of redacting information for relevant exemptions can be taken into account when assessing this under s.14 FOIA, in contrast to s.12 FOIA – Innes v Information Commission and Buckinghamshire County Council [2016] UKUT 520 (AAC) at [54].k. Eleventh, it is permissible when considering the burden on a public authority to assess the context and history of the particular request, having regard to the previous course of dealings between the individual requester and the public authority. The breadth, pattern and duration of previous requests may be a telling factor – Dransfield at [29]. A single well-focussed request is less likely to run the risk of being found to be vexatious – Parker at [25].l. Twelfth, the period at which vexatiousness should be judged is the time when a response is due to the request under FOIA – Soh at [101]. However, that does not necessarily preclude subsequent events from being taken into account either (i) to the extent that they shine a light on the state of affairs at the time the response was due – Lee v Information Commissioner and King’s College Cambridge (EA/2012/0015) at [80] or (ii) when considering, what steps, if any, need to be taken by a public authority under s.50(4) FOIA if the appeal is allowed – Stürmer v Information Commissioner and North East Derbyshire District Council [2015] UKUT 0568 (AAC) at [91] – [95].[14]These general propositions must be applied to the specific facts before a Tribunal considering the application of s.14 FOIA; not all will be applicable in each case.

Evidence

[15]We have considered a bundle containing 76 pages. This contains the Grounds of Appeal relied on by the Appellant, together with the correspondence between the NHS Trust and the Commissioner which informed the Decision Notice. The Appellant has not submitted any evidence to support his appeal. The Tribunal has considered all of this material carefully, but does not consider it necessary to refer to all, or indeed most of it, in this judgment.

Discussion and Conclusions

[16]Having considered and applied the relevant legal principles summarised at paragraphs 11 to 13 above, the Tribunal unanimously concluded that the Commissioner was correct to find that s.14 FOIA applied to the Request and the grounds of appeal did not disclose any error of law on the part of the Commissioner.[17]The Tribunal reached this conclusion having considered all the circumstances of the case and having taken a holistic assessment of the matter, focusing centrally on the proportionality of the Request including specifically its burden on the NHS Trust and the value or public interest in the information sought under FOIA. The main reasons for this conclusion are as follows:a. The scope of the Request made by the Appellant is exceptionally broad and unfocussed. While we are clear that this does not, of itself, make a request vexatious, the unfocussed nature of the Request in this specific case has a number of important consequences. First, it substantially increases the burden on the public authority when complying with the Request (which we address further below). Second, on the facts of this case, the breadth of the information sought consequently diminishes any corresponding public interest in the requested information, reducing this, on the Appellant’s own grounds of appeal to a level of generality which limits the weight which the Tribunal can place on it. The combination of these two factors means that the proportionality assessment substantially leans towards a finding of vexatiousness, albeit this is not conclusive. It must be assessed in conjunction with all the other factors.b. We accept the NHS Trust’s evidence and the Commissioner’s finding that addressing the Request would create a very substantial and undue burden on the NHS Trust. There was no challenge to the evidence that responding to the Request would take the NHS Trust approximately 100 hours. The evidence on this issue, namely that the contracts would often run to hundreds of pages and contain exempt information under s.43 FOIA was credible and reasonable in the circumstances. We accept it. A public authority will have finite resources to ensure compliance with its information rights obligations and these must be allocated proportionately. The more time which is spent addressing one request under FOIA, the less there is available to address other requests which may be of greater value and public interest. Accordingly, a burden of approximately 100 hours to comply with a request is a significant and weighty factor to be taken into account when assessing proportionality and the application of s.14 FOIA. However, we would not go quite so far as to consider that burden alone in this case justifies the application of s.14 FOIA. Rather, we consider that it is a very weighty albeit not conclusive factor.c. The substance of the Appellant’s argument concerns the public interest in the information sought. Indeed, this is really the only basis on which the Appellant challenges the Decision Notice. However, we consider that there is a relatively limited and generalised value or public interest in the publication of the information sought. There are three main points in this regard: i. First, the Appellant argues that the information is of “interest to the public”. This is not the same as considering the public interest. The Commissioner himself points this out in his guidance on the “public interest test” which is published online. In any event, the Appellant has not identified any information which would be of interest to the public in these contracts and we are not persuaded that highly technical and detailed contracts are, in general, likely to be of interest to the public. ii. Second, and more fundamentally, while there is no doubt a “value” to the information sought, the real question is the weight to be afforded to that value or public interest. In this case, the breadth of the Request across a wide range of almost fifty contracts means that there is a high level of generality to any assessment of the public interest. The Appellant does not assert that any of the specific contracts have a particular public interest or reveal information of specific importance. He does not assert that any of his specific concerns about the performance of the NHS Trust will be addressed in any of these contracts. Instead, the Appellant’s case is framed at a level of high generality, arguing that this information “should be released as a matter of course” as part of a general commitment to “openness and transparency” and that there is “some importance” in precise details rather than general contractual summaries being made available. This approach is so broad and generalised in its scope that we do not consider that significant weight can be placed on the value of the information in the proportionality assessment under s.14 FOIA. iii. Third, we consider that the public authority has released information in relation to its monthly expenditure which meaningfully contributes to the public interest in transparency concerning its major items of expenditure. It provides monthly transparency reports which list all the NHS Trust’s expenditure each month over £25,000. This provides substantial detail, including the value of the contract and the general nature of the contract. The Appellant also has been provided with many invoices for relevant contracts under FOIA.d. Accordingly, applying a proportionality assessment between the burden of the Request and the NHS Trust with the value of the information, we agree with the Commissioner’s conclusion in the Decision Notice that s.14 FOIA is engaged and the Request is vexatious. The Request constitutes an entirely disproportionate burden on the NHS Trust’s resources having regard to the value of the information sought.e. However, in addition, we consider there is force in the thrust of the submissions made by the Commissioner in his Response (but not in the Decision Notice itself) that there will likely be an increased burden of FOIA requests from the Appellant if this information is provided. In doing so, we acknowledge that events after the time for responding to the Request should only be taken into account insofar as they shine a light on circumstances at the relevant time and that we should not otherwise take these into account in determining whether the Request was vexatious at the time it was made. Insofar as the NHS Trust and the Commissioner (as set out at paragraphs 40 and 41 of the Commissioner’s Response) do rely on such events, we do not take them into account. However such a pattern of conduct is readily apparent in the Appellant’s correspondence with the NHS Trust in the months between February 2022 and July 2022 which led up to the Request. This correspondence demonstrates a repetitive and demanding pattern of behaviour on the part of the Appellant which imposes a substantial burden on the NHS Trust. He repeatedly demands that wide-ranging information is provided by the NHS Trust. which is coupled with serious allegations and then repeated complaints. The correspondence, taken as a whole, strongly suggests a myopic focus on satisfying the Appellant’s demands without an awareness of the impact and burden he places on the NHS Trust or any specific focus on particular issues of public interest. The Appellant’s approach is to obtain all information he might seek without restriction or limits. To give a few examples of this approach: i. On 28 January 2022 and 14 February 2022, the Appellant made exceptionally wide ranging requests for information. He asked for “a copy of all the material [the NHS Trust has]] in relation to the current status of the new build”, “all the information relating to what is going to happen with the old building this year”, “including costs associated with the continued running of any part of the building”, and “also information in relation to legal action in relation to the new build – including decisions not to take legal action.” ii. In an email sent on 16 February 2022, the Appellant demanded to know why the NHS Trust had taken three weeks to respond to his email of 28 January 2022. The email was sent just over an hour after the NHS Trust had responded to him seeking clarification. The email claimed that the Appellant “consider[s] that the evasion and obstruction to be nothing less than hiding corruption and dysfunction in the trust” and made numerous unfettered demands for access to information, intermingled with criticisms of the NHS Trust’s approach as “obvioulsy disgraceful” [sic] and that its apparent refusal “makes a mockery of claims of transparency”. iii. Responses from the NHS Trust were met with immediate demands for further information, for example in an email of 8 April 2022 which now requested “the minutes for the March and April meetings”. iv. Rejections of the Appellant’s requests are met with trenchant criticisms. This is indeed apparent in the email containing the Request itself dated 7 July 2022 which describes a separate ICO Decision Notice as “not just perverse but preposterous” and repeats his “complaint that [the NHS Trust] has maliciously and unreasonably declared my requests for more detail…to be vexatious without due process.” When this correspondence is assessed collectively, there is ample evidence predating the Request in July 2022 which shows that the Appellant will not be satisfied by the information provided and that it will lead to further demanding requests and further burden on the NHS Trust. We consider that this reinforces the vexatious nature of the Request.[18]Accordingly, in all the circumstances, we agree with the Commissioner that the Request was vexatious within the meaning of s.14 FOIA. The objectively judged high bar for the application of this section is properly made out. We are satisfied that there was no error of law in the Decision Notice and we agree with its conclusion that s.14 FOIA applies to the request. Accordingly, we dismiss the appeal.