Hearing Heard on: 01 July 2026.Date 12 August 2026
Information Rights
Before: Brian Kennedy KC
With Specialist Members Dave Sivers
and Stephen Shaw.
Jonathon ReadAppellantThe Information CommissionerThe First RespondentThe Open UniversityThe Second RespondentAppearances:
Between
Jonathon ReadAppellantThe Information CommissionerRespondentThe FirstRespondentThe Open UniversityRespondentThe SecondRespondentAppearancesRespondentJonathon Read as a Litigant in Person for Appellant for First Respondent: Michelle Armitt Senior Case officer at the ICOand Helen Wrighton, Solicitor with written submissions. for Second Respondent: Peter Lockley of Counsel.Decision: The appeal is DismissedREASONS FOR DECISION
Introduction and Background:
[1]This appeal concerns a request for information made by the appellant to the Open University ("the University") under the Freedom of Information Act 2000 ("FOIA"). The request was refused by the University under section 14 FOIA and that refusal was subsequently upheld by the Information Commissioner. The appellant now appeals against the Commissioner's decision.[2]The appellant undertook and completed a Master of Business Administration ("MBA") with the University between 2020 and 2023. Following completion of his studies, concerns arose regarding aspects of the assessment process and matters associated with the 2023 UCU marking boycott. Those concerns developed into a broader dispute between the parties concerning assessment governance, quality assurance processes, external examining arrangements and the University's response to issues raised by the appellant.[3]The appellant's position is that his enquiries and requests were directed towards matters of legitimate public concern involving academic standards, accountability and institutional governance. The University has consistently disputed the allegations advanced and maintained that its academic and quality assurance processes operated properly throughout the relevant period.[4]From 2023 onwards the appellant engaged extensively with the University through a combination of information rights requests, data protection requests, complaints, review requests and related correspondence. The parties fundamentally disagree regarding the significance of that engagement. The appellant regards it as a necessary and proportionate attempt to obtain information concerning matters of wider importance. The University characterises it as part of an increasingly prolonged and repetitive dispute arising from dissatisfaction with matters connected to the appellant's studies and academic outcome.[5]During 2024 the appellant made disclosures which he characterised as whistleblowing disclosures concerning wider issues of governance, assessment and regulatory oversight. The University rejected those allegations. The Tribunal does not make findings concerning the merits of those allegations. Their relevance in this appeal is limited to the extent that they assist in understanding the context, purpose and perceived value of the request with which this appeal is concerned.[6]By January 2025 there existed a substantial history of interactions between the parties involving FOIA requests, data protection matters, complaints, correspondence and regulatory engagement. Although there is less disagreement about the occurrence of many of the underlying events than about their significance, that background forms part of the context in which the disputed request must be assessed. A request falling for consideration under section 14(1) FOIA cannot always be evaluated in isolation from the history and circumstances in which it was made.[7]Against that background, on 17 January 2025 the appellant submitted a four-part request seeking information concerning external examining arrangements, examination boards, contracts with external examiners, departures from established procedures arising during the UCU marking boycott and the use of alternative or irregular markers in relation to specified modules studied by the appellant. The request therefore concerned issues of academic governance, assessment processes and the operation of procedures said to have been adopted during the marking boycott.[8]The University refused the request, relying upon sections 14(1) and 14(2) FOIA. Following an internal review, that position was maintained. The appellant subsequently complained to the Information Commissioner, who concluded that the University was entitled to rely upon section 14(1) FOIA and that it was unnecessary to determine separately the University's reliance upon section 14(2). It is that decision which gives rise to the present appeal.[9]It is common ground that the request was not frivolous in subject matter and that it concerned issues capable of attracting some degree of public interest. The principal issue in this appeal is whether, when assessed objectively and in the context of the history outlined above, the request nevertheless constituted a vexatious request within the meaning of section 14(1) FOIA.
Chronology:
[10]17 January 2025: The appellant submitted the four-part information request which forms the subject matter of this appeal. The request sought information concerning external examining arrangements, examination boards, external examiner contracts and departures from established procedures during the 2023 UCU marking boycott.[11]13 February 2025: The University refused the request, relying upon sections 14(1) and 14(2) FOIA.[12]21 February 2025: Following an internal review, the University maintained its refusal.[13]The appellant subsequently complained to the Information Commissioner. Following an investigation, the Commissioner issued Decision Notice IC-365779-F2P8 on 19 December 2025, concluding that the University was entitled to rely upon section 14(1) FOIA and finding it unnecessary to determine separately the University's reliance upon section 14(2).[14]The appellant appealed to the Tribunal on 15 January 2026.[15]During the course of the appeal a number of procedural issues arose concerning disclosure, closed material and procedural fairness. Those matters were resolved by the Tribunal before the appeal proceeded to determination of the substantive issues.
Scope of the Appeal:
[16]The Tribunal is not concerned with the merits of any academic assessment, the appellant's degree classification, the handling of any whistleblowing disclosures, data protection matters, complaints processes, employment issues or any other proceedings involving the parties. Evidence concerning those matters is relevant only insofar as it forms part of the factual context in which the request of 17 January 2025 was made.[17]The appeal falls to be determined by way of a full merits review. The Tribunal must reach its own conclusion on the evidence before it as to whether the Commissioner correctly upheld the University's refusal of the request.[18]The proceedings also involved substantial argument concerning disclosure, Rule 14 material and procedural fairness. Those matters formed part of the procedural background which the Tribunal resolved before determining the substantive issues.
Legal Framework:
[19]The appeal is brought pursuant to section 57 FOIA. The Tribunal's powers are contained within section 58 FOIA. The Tribunal conducts a full merits review and must reach its own conclusion on the issues arising in the appeal.[20]Section 14(1) provides that a public authority is not obliged to comply with a request for information if the request is vexatious. Section 14(2) concerns repeated requests and applies where the statutory conditions contained within that subsection are satisfied.[21]The leading authority remains Information Commissioner v Devon County Council and Dransfield [2012] UKUT 440 (AAC), subsequently upheld in material respects by the Court of Appeal. The authorities establish that the question is whether the request represents a manifestly unjustified, inappropriate or improper use of FOIA. The assessment is holistic and contextual.[22]The factors commonly discussed in the authorities, including burden, purpose, value, motive, distress and the broader relationship between the parties, are not a checklist and no one factor is determinative. The Tribunal must stand back and consider the circumstances as a whole.[23]Although there is no formal burden of proof in the strict sense, the University and the Commissioner must establish a sufficient evidential basis for reliance upon section 14(1). The Tribunal has considered all of the evidence before it and reached its own conclusions on the balance of probabilities as part of its full merits review under sections 57 and 58 FOIA.
The Issues:
[24]The Tribunal notes that there is substantially less disagreement concerning the occurrence of many of the relevant events as set out above than there is concerning their significance. The broad and complex chronology is largely capable of identification from the contemporaneous documentation. The principal dispute concerns the conclusions properly to be drawn from that chronology.[25]The Appellant contends that the request formed part of a wider attempt to investigate matters of legitimate public concern relating to academic standards, governance, external examining arrangements and institutional accountability.[26]The University contends that the request formed part of a sustained campaign arising principally from the appellant's dissatisfaction with his academic outcome and that the cumulative history of requests, complaints, correspondence and associated conduct is central to the section 14 analysis.[27]The Tribunal accepts that both contentions derive from substantially the same historical events. The issue is not therefore whether the history existed, but what weight should properly be attached to it.
Findings of Fact:
[28]Before making our findings, we remind ourselves that the issue before the Tribunal is not whether the appellant's concerns regarding his academic assessment are well founded, but whether the request dated 17 January 2025 was properly characterised as vexatious within the meaning of section 14(1) FOIA[29]The appellant, during his cross-examination of the University's principal witness, identified and explored a number of alleged discrepancies relating to the extent, number and nature of requests, correspondence and associated exchanges. Having carefully considered the evidence as a whole however we are satisfied that no error or inaccuracy has been shown which materially affects our assessment. We are not persuaded that the University sought to mislead either the Commissioner or this Tribunal on any material matter.[30]We accept that the request possessed some objective public value. However, by January 2025 much of the information-rights activity between the parties had already been directed towards substantially the same underlying concerns. In that context, whilst the request retained some public-interest value, we find that its additional and practical value was reduced when assessed against the extensive history of prior engagement and whilst some wider public-interest value existed. We find that at the time of the request its practical purpose continued to be closely connected with the appellant's own academic assessment, academic outcome and the processes by which that outcome had been reached. Whilst the request was framed in broader terms, its principal focus remained rooted in concerns arising from the appellant's MBA studies and the consequences of those studies.[31]We do not accept that the existence of a whistleblowing dimension is determinative of this appeal. The relevance of those disclosures is limited to the extent that they assist in understanding the purpose, value and context of the request. A request may possess some public-interest value and yet, when viewed in its full factual context, still satisfy the test for vexatiousness under section 14(1) FOIA.[32]We find that the request cannot properly be considered in isolation. By the date of the request there had developed a substantial history of FOIA requests, data protection requests, complaints, regulatory engagement, correspondence and related interactions between the parties. Whilst no individual feature is determinative, that cumulative context forms an important part of the section 14 assessment and carries significant weight.[33]We find that the request formed part of a continuing course of information-rights activity directed towards substantially the same underlying concerns. Although the appellant characterised those concerns as extending beyond his individual circumstances, the evidence demonstrates a continuing focus upon matters connected with his own academic assessment and outcome.[34]We do not regard distress as the strongest aspect of the University's case. The arguments concerning purpose, cumulative context and diminishing value carry considerably greater weight. However, the open evidence does support a finding that aspects of the appellant's conduct and correspondence gave rise to genuine concern for certain individuals. We accept that some recipients perceived elements of the conduct as intrusive or distressing. We do not treat this factor as decisive but as part of the overall factual picture.[35]We accept that criticism of public bodies and their officials is legitimate and that robust scrutiny does not of itself amount to harassment. Equally, the Tribunal is entitled to consider the effect of repeated and persistent conduct when evaluating the broader factual context in which a request has been made.[36]We do not regard the resource implications of responding to the request, viewed in isolation, as a material burden. The resource implications of the request in isolation were not substantial. However, the significance of burden in this case arises from the cumulative demands generated by the wider pattern of activity of which this request formed part[37]Section 14 requires a broader and contextual assessment. The relevant burden arises not merely from locating and considering information responsive to the request itself but from the cumulative effect of the extensive and continuing pattern of requests, complaints, correspondence and associated engagement within which this request was made. We therefore treat burden as a relevant, though not decisive, consideration within the overall contextual evaluation.[38]A significant feature of these proceedings was dispute concerning closed material. The appellant consistently challenged the fairness of reliance upon information unavailable to him. We have considered those concerns carefully and made our position clear from the outset. Whilst we have considered the closed material for the purposes for which it was admitted, our conclusions do not depend upon it. We are satisfied that independently of the closed material, the open evidence and submissions provide an ample evidential basis for the conclusions we have reached.[39]We have therefore assessed the request in its full factual context. We have conducted full merits review pursuant to sections 57 and 58 FOIA and have reached our own conclusions on the evidence and submissions before us.[40]We emphasise that a request does not become vexatious merely because it concerns a matter of personal importance to the requester, because it is persistent, or because it raises issues that the requester genuinely believes to be of wider public significance. Nor does the Tribunal treat persistence, of itself, as evidence of vexatiousness. Persistence may be entirely legitimate. The significance of persistence in the present case lies in the cumulative pattern of information-rights activity directed towards substantially the same underlying concerns and the context thereby created.[41]The question is whether, viewed objectively and in context, the request represents a disproportionate and unjustified use of the FOIA regime. In this case it is the combination of the limited remaining value of the request, its close connection to issues previously pursued by the Appellant, and the extensive history of related information-rights activity that leads us to conclude that the statutory threshold has been crossed.[42]Standing back and considering all relevant circumstances in the round, we find that: a) the request possessed some objective value and was not frivolous; b) the request remained substantially connected to the appellant's own academic assessment and outcome; c) the cumulative history of requests, complaints, correspondence and associated interactions formed a significant part of the relevant context; d) the public-interest element relied upon by the appellant carried less weight than he contended; and e) the request formed part of a continuing and repetitive course of information-rights activity directed towards substantially the same underlying concerns.
Conclusion:
[43]The Tribunal accepts that the appellant's concerns are sincerely advanced and that he has pursued them with considerable persistence. The issue before us, however, is not whether those concerns are correct, nor whether the appellant was justified in raising them through other channels. The issue is whether the request of 17 January 2025 constituted a proper use of the rights conferred by FOIA when viewed objectively and in its full factual context.[44]Having undertaken a full merits review of the evidence and submissions, we are satisfied that the request possessed some independent value and was not frivolous. We also accept that the appellant may genuinely have regarded the matters identified in the request as extending beyond his individual circumstances and as engaging wider issues of academic governance, accountability and standards.[45]Nevertheless, we find that the request must be assessed against the substantial history of information-rights activity, complaints, correspondence and related interactions that had developed between the parties by January 2025. That cumulative context forms an important part of the section 14 assessment and cannot properly be disregarded.[46]Having considered the request in that context, we find that its principal focus remained closely connected with the appellant's own academic assessment, academic outcome and the processes by which that outcome had been reached. Whilst wider public-interest considerations were relied upon by the appellant, we are not persuaded that those considerations represented the principal purpose or practical effect of the request at the time it was made.[47]We have reached our conclusions principally on the basis of the open evidence and submissions available to all parties. Whilst issues concerning closed material occupied a significant part of the procedural history of this appeal, our substantive findings do not depend upon the closed material and are fully sustainable on the open evidence alone.[48]We have considered carefully whether the existence of some objective public value prevents the request from being characterised as vexatious. We conclude that it does not. Section 14 requires an evaluative judgment taking account of all relevant circumstances. In the present case the cumulative context, purpose and pattern of engagement outweigh the remaining value of the request when viewed objectively and in the round[49]Standing back and assessing all relevant material circumstances holistically and applying the approach required by Information Commissioner v Devon County Council and Dransfield [2012] UKUT 440 (AAC), we unanimously conclude that the request constituted a manifestly unjustified, inappropriate or improper use of the FOIA process. In reaching that conclusion we have given weight both to the objective value of the request and to the appellant's genuine belief that issues of public importance were engaged, and we find those considerations are outweighed by the cumulative context in which the request was made, its close connection to matters repeatedly pursued over an extended period, and the disproportionate use of the information-rights regime demonstrated by the history as a whole.[50]Accordingly, we find that the University was entitled to rely upon section 14(1) FOIA in refusing the request. The Commissioner was correct to uphold that position, and the appeal is therefore dismissed.[51]In light of that conclusion, it is unnecessary for the Tribunal to determine separately the University's alternative reliance upon section 14(2) FOIA. Brian Kennedy KC 07 August 2026.