Dr Robert James Abrahart v The Information Commissioner & Anor [2026] UKFTT 1220 (GRC)

[2026] UKFTT 01220 (GRC)Case Reference: FT/EA/2025/0247
First-tier Tribunal
(General Regulatory Chamber)
Hearing Heard on: 26 May 2026Date 25 August 2026
Information Rights
Heard by Cloud Video Platform
Before
JUDGE SAWARDTRIBUNAL MEMBER SCOTTTRIBUNAL MEMBER SHAW
Between
Dr. ROBERT JAMES ABRAHARTAppellantTHE INFORMATION COMMISSIONERRespondentDEPARTMENT FOR EDUCATIONRespondentIn person (unrepresented) for Appellant for First Respondent: Did not attend for Second Respondent: Laura Shepherd, CounselDecision: The appeal is Dismissed.REASONS

Introduction and background

[1]The Freedom of Information Act 2000 (“FOIA”) provides for a general right of access to information held by public authorities. That right is subject to exceptions and exemptions. It makes provision for its enforcement by the Information Commissioner (“the Commissioner”) and for a right of appeal from a decision of the Commissioner to the General Regulatory Chamber of the First-tier Tribunal (“the Tribunal”).[2]The Appellant has appealed against three separate decisions of the Commissioner. All concern requests for information made by the Appellant to the Department for Education (“DfE”). The appeals were heard together on two consecutive days, but they have not been consolidated. The appeals bearing Tribunal references FT/EA/2024/0265 and 0294 are subject to separate decisions.[3]The appeals relate to tragic incidents where students in higher education settings have taken their own lives. The LEARN Network is a campaign group of bereaved families who launched a petition for the Government to introduce a statutory, legal duty of care in higher education. The petition was debated in Parliament on 5 June 2023. Another campaign group named “ForThe100” has continued to campaign for high education settings to have a statutory legal duty of care. This issue has generated a number of information requests to the DfE.[4]This appeal bearing reference 0247 is made against a Decision Notice dated 6 June 2025 (“the Decision Notice”) concerning the Appellant’s clarified request for information made to the DfE dated 31 October 2024 (“the Request”).[5]All our reasons are set out within this singe, open decision.[6]The Request The Request followed an earlier request made by a co-campaigner on 3 October 2023 for anonymised and redacted copies of information that was withheld from disclosure by DfE as being legally privileged. The Commissioner concluded that the information was exempt from disclosure under section 42 FOIA as it remained legally privileged.[7]In this Request, the Appellant asked the DfE for:(1) “All documents, letters, emails, reports, summaries, notes, annotation, or briefing materials provided to the ICO for this case, excluding only the email records identified in the Decision Notice as containing information exempt under Section 42 (legal professional privilege) of the Freedom of Information Act.(2) Redacted versions of these documents where Section 42 or other exemptions apply.”1 Refusal of

The Request

[8]The DfE refused the Request on 25 November 2024 under section 14 FOIA as it had answered a substantially similar request from another requester considered to be a co-campaigner.[9]At the Appellant’s request, the DfE conducted an internal review. The outcome of the DfE’s review upheld its refusal on 20 December 2024.[10]On 21 December 2024, the Appellant complained to the Commissioner who allocated the reference IC-353447-X6G7.

Decision Notice

[11]Decision Notice The Commissioner decided that the Request was vexatious and the DfE correctly refused it under section 14(1) FOIA. However, the DfE had breached section 1(1)(a) and 10(1) by failing to confirm in writing that the information was held within 20 working days. No steps were required to be taken by the DfE.[12]The Commissioner considered that the initial requests were clear in purpose in establishing whether the DfE sought legal advice and the nature of any such advice. The Commissioner had already decided that the information was subject to legal professional privilege. The Appellant had argued that this Request differed from the one that was the subject of an earlier decision notice as it excluded asking for emails deemed to be subject to legal professional privilege.[13]Based on the evidence presented by DfE, the Commissioner noted that requests continued despite the decision notice and the DfE answering several overlapping requests on the subject. The DfE had attempted to provide explanations and information where appropriate. Requests continued despite assurances from a government minister that legal advice was sought.[14]The Request is “slightly different” from the numerous requests seeking to obtain the legal advice or documents containing it. However, it was not clear what the wider public interest would be in the requested information. It would be of interest to the Appellant and co-campaigners, but it is unlikely to increase public understanding of decisions on whether a statutory duty of care in higher education should be established.[15]The Commissioner considered that responding to further requests on the subject of legal advice provided or the decision to uphold the DfE’s refusal decision, was unlikely to draw a line under this issue. It was likely to keep open a matter that was investigated and considered through multiple avenues already.

Grounds of Appeal

[16]Grounds of Appeal After submission of the Notice of Appeal to the Tribunal on 3 July 2025, the Appellant informed the Tribunal that he has obtained a copy of a letter, which was the sole document sought by his Request. The Appellant said that the DfE disclosed the 13-page letter dated 16 August 2024 sent by a Senior FOI Compliance Manager at DfE (“the SCFM letter”) to a third party on 10 March 2025 by means of a subject access request. A copy was passed to the Appellant.[17]Given this development, the Appellant submitted that the SCFM letter is no longer confidential to the DfE. It exists outside the control of any proceedings. The Appellant says that any compliance step under FOIA would be entirely duplicative, since the redacted version is already in his possession. Consequently, the Appellant argues that the section 14 exemption cannot stand.[18]The Appellant states that the DfE’s refusal relied upon section 14(2) FOIA (repetition). Without notice or giving the Appellant opportunity to be heard, the Commissioner substituted section 14(1) (vexatiousness).[19]The Appellant disputes that his Request “drifted” into vexatiousness. This term refers to requests that lose focus or wander into areas lacking clear purpose. The Appellant maintains that the Request did neither. The Request was precise and proportionate. It sought a single, identified document and was plainly purposeful. FOIA is motive-blind and entitles requesters to pursue information without artificial limits.[20]The DfE’s representative accepted that “it would not have been difficult for the DfE to provide Dr Abrahart with the information sought”.[21]In Stürmer v IC & North East Derbyshire DC[2015] UKUT 0568 (AAC), the Upper Tribunal held that later developments may be considered under section 50(4) when deciding what steps, if any, are required. But they do not retroactively convert a lawful request into a vexatious one.[22]With the SCFM letter now in his possession, the Appellant says that no compliance step is required, but it is insufficient to leave matters as they are for four reasons:(1) Principle: the record must be corrected where an exemption was wrongly upheld.(2) Reputation: a finding of vexatiousness is damaging and unjustified.(3) Fairness: in August 2024, the DfE promised that future requests would be assessed individually and without prejudice. The commitment was ignored.(4) Precedent: leaving the label in place risks it being cited against the Appellant in other cases, contrary to justice.[23]The Appellant states that continuing to a contested oral hearing would serve no purpose as the DfE has provided no substantive evidence. The Tribunal is invited, under section 50(4) FOIA to:(a) Declare that the Request was not vexatious when made;(b) Quash the Decision Notice, which wrongly upheld refusal under section 14(1);(c) Record under section 50(4) that no further steps are required because the SFCM letter has since been disclosed.[24]In summary, the grounds of appeal in the Notice of Appeal dated 3 July 2025 were: 24.1. The Request sought disclosure of what is now known to be a single, unsigned, readily available 13-page letter authorised by a Senior FOI Compliance Manager at DfE (i.e. the SCFM letter). The SCFM letter was submitted to the Commissioner during a separate FOIA investigation. It culminated in a decision notice dated 15 October 2024 on a broader request for redacted copies of legally privileged material. 24.2. The Request is narrower and more targeted, seeking only supporting material that informed the Commissioner’s decision of 15 October 2024. 24.3. The SFCM letter was disclosed with minor redactions on 10 March 2025. 24.4. Section 14 FOIA clearly distinguishes between repeated requests and those deemed vexatious in subsections (1) and (2). The distinction is critical. Section 14(1) is not a catch-all to avoid disclosure where a request is merely inconvenient or repeats a theme. It sets a significantly high threshold requiring clear evidence of disproportionate burden, improper motive, or palpable unreasonableness. None of those elements were present. 24.5. DfE had not previously complied with any request from the Appellant concerning this material. It could not rely on section 14(2) so relied on section 14(1). The higher bar was not met. 24.6. The Commissioner’s Decision Notice is legally and factually flawed. As explained in the internal review request, access to this contextual information is critical for understanding the Commissioner’s ruling in his earlier decision. 24.7. The Commissioner treated the Appellant as personally vexatious. He relied on unfounded mischaracterisations of the Appellant’s purpose and behaviour and misrepresented the purpose of the Request. 24.8. This was a precise and targeted request that excluded known privileged content. It sought only accompanying documentation the DfE submitted to the Commissioner. 24.9. By any rational measure, the Request imposed no disproportionate burden. It falls squarely outside the scope of vexatiousness described by the Upper Tribunal in Information Commissioner v Dransfield[2012] UKUT 440 (AAC) . 24.10. The Request was public-spirited. It sought to shed light on the reasoning behind a regulator’s decision concerning a prominent, high-profile, and legally unsettled policy area; the legal duties owed by universities to their students. It served the public interest in transparency, regulatory scrutiny and open debate. 24.11. The Commissioner’s own published guidance on section 14(1) is clear that it can only be applied to the request itself, and not the individual who submits it. 24.12. The Decision Notice appears to improperly focus on the Appellant’s perceived motives or identity. The Regulator cannot assign a purpose to the Request. 24.13. The Commissioner appears to have relied exclusively upon a single letter or submission from the DfE without undertaking any meaningful or diligent effort to seek corroborative or independent evidence to verify or challenge DfE’s assertions. The reasoning and language of the Decision Notice mirrors that used by the DfE without independent analysis. He failed to act as an independent and impartial regulator. 24.14. The premise of the Request was clear. It sought to understand the evidential basis on which the Commissioner upheld a highly contested refusal. In particular, it aimed to clarify how the DfE may have influenced that outcome. It was plainly a matter of significant public interest. 24.15. The Decision Notice adopted an unduly narrow and selective view of public interest. The Request was not concerned with debating a statutory duty of care policy, but “uncovering how a regulatory decision had been made – including what materials were submitted and how they were evaluated.” 24.16. By acknowledging that the information would be of value “to the complainant and their co-campaigners”, that alone satisfied the threshold established by the Upper Tribunal in Dransfield. The Commissioner distorted the meaning of the Request by reframing it as a policy advocacy exercise rather than a procedural inquiry. 24.17. No explanation was provided as to the nature, volume, timing or alleged overlap of the “numerous requests”. The Commissioner acknowledged that the Request was “slightly different” and concedes the Request was not identical. FOIA contains no requirement that a request must be significantly or meaningful distinct to escape the vexatiousness label. 24.18. The Decision Notice omitted any clear explanation of how the Request was supposedly similar to previous ones. Any similarity was limited to subject matter in the broadest thematic sense i.e. student safety and the legal obligations of a university. 24.19. It was factually incorrect for the Commissioner to conclude that the Request was unlikely to increase public understanding around the decisions on whether a statutory duty of care in higher education should be established. The Request did not seek information about the substance of policy decisions. It was directed at regulatory transparency. Poor and unjust decision-making is precisely the kind of issue FOIA was designed to expose. The public is entitled to know how a statutory regulator evaluates claims of legal privilege and whether that process is open to institutional influence. 24.20. Despite the complexity of the issues raised, the Commissioner undertook no follow-up operations, no clarification of issues arising, no detailed investigative work and no attempt to work constructively with the Appellant. 24.21. The Commissioner appears to have relied on a subjective assessment of the Appellant’s motives and campaigning background instead of objective, evidence-based analysis. He purported to conduct a balancing exercise but failed to carry out that test properly or assign the value of the Request substantial weight.[25]The Appellant concludes that the Decision Notice is procedurally flawed, legally unsustainable and unsupported by adequate legal reasoning. It fails to apply the correct legal tests, relies on vague and unsubstantiated claims of repetition and motive. It disregards the content, purpose and public interest value of the Request.[26]The outcome sought is a finding that the Request was not vexatious under section 14(1) FOIA and for the Decision Notice to be set aside, and a direction for the Commissioner to conduct a fresh investigation. If possible, a direction is sought for disclosure of the information in full or with lawful redactions.

Commissioner’s Response

[27]Commissioner’s Response The Commissioner’s response pre-dated the Appellant notifying the Tribunal that he has now been provided with the information he sought. In the Response, the Commissioner opposed the appeal and stood by his Decision Notice. He submitted that in all the circumstances of this case the Request was vexatious further to the binding case law set out by the Court of Appeal in Dransfield v Information Commissioner & Devon County Council[2015] EWCA Civ 454 (and which did not depart from the Upper Tribunal findings in Information Commissioner v Dransfield[2012] UKUT 440 (AAC)).[28]Alongside his response, the Commissioner provided a copy of his own non-statutory guidance about section 14 FOIA.

DfE’s Response

[29]DfE’s Response The DfE’s response of 4 August 2025 post-dated the Appellant notifying the Tribunal that he is now in receipt of the information sought via other means.[30]The DfE clarifies that the SCFM letter was in fact disclosed in other Tribunal proceedings involving a different appellant. The Tribunal’s standard directions had been issued in that case, which say:
“When a document is disclosed to a party for the purposes of the appeal (or application), it cannot be used for any other purpose without either, (i) the agreement of both the party who disclosed the document and the person to whom the document belongs, or (ii) with the permission of the Tribunal.”
[31]The DfE makes the point that the document should not have been disclosed to the Appellant without the consent of the DfE or the Tribunal. It was a breach of the Tribunal’s order of 5 December 2024. Nonetheless, the DfE does not object to the Appellant making use of the letter for the purposes of this appeal. The DfE emphasises that it does not consent to use of the letter for any other purpose.[32]In relation to section 14 FOIA, the DfE says (in summary): 32.1. While it would not have been difficult for the DfE to provide the Appellant with the information sought, it must be seen in the context of previous dealings between the DfE and the Appellant. 32.2. The DfE finds it notable that the Appellant had sent considerably more FOIA requests to the DfE than the requester in Dransfield. The torrent of FOIA requests and other correspondence from the Appellant placed a considerable burden on DfE over a prolonged period. It required the diversion of resources which could have been used in the furtherance of policy objectives (including steps to support students with poor mental health). 32.3. There is no reason to think that providing the information requested would have brought a close to correspondence. It is likely to have led to “a barrage of further correspondence and requests”, as per the Upper Tribunal’s judgment in Dransfield, at [70]. 32.4. The Appellant’s initial correspondence was no doubt motivated by genuine concerns about whether appropriate steps were taken to prevent students dying by suicide. His correspondence drifted into general fishing for information held by DfE without any serious purpose. This 18th Request has nothing to do with higher education or suicide prevention. 32.5. The information sought would not have any significant value to the Appellant or any section of the public. The information is said to be sought to scrutinise the Commissioner’s handling of an earlier request, but the statutory right of appeal invoked by that appellant provides a mechanism for independent scrutiny of decision notices.[33]In response to the grounds of appeal, the DfE says in summary: 33.1. The Appellant’s assertion that the Request was “precise and proportionate” and could have been retrieved without difficulty, does not disclose any error in the Commissioner’s conclusion. 33.2. The Appellant has mischaracterised the decision notice in the earlier request of 15 October 2024. It did not make any decision about the legal duties owed by universities to their students. It made a decision about the application of section 42 FOIA. There was no significant public value to this 18th Request. 33.3. The allegation that the Commissioner “failed to act as an independent and impartial regulator” is baseless. It appears to be founded on the Commissioner accepting the DfE’s submissions in the earlier case, the appeal against which has now been dismissed. 33.4. A requester’s motive is potentially relevant to the question of vexatiousness – see Dransfield (at [28], Upper Tribunal and [68], Court of Appeal). The Decision Notice did not say that the Request was made for any policy advocacy purpose. 33.5. The DfE gave no assurance that future requests would not be treated as vexatious. The fact DfE did not treat all the Appellant’s requests as vexatious reflects how it considered the possible application of section 14 on a case-by-case basis. 33.6. Where the Decision Notice records that the DfE had stated “it has received 75 ‘correspondence cases’, as well as 43 requests under FOIA from the complainant since November 2023” this reflects what the DfE told the Commissioner by letter dated 21 May 2025. The DfE accepts the Appellant had not made 43 individual FOIA requests. The figure of 43 reflects the number of requests logged on DfE systems, including requests for internal reviews. The Appellant had been corresponding with DfE since at least May 2023, not November 2023. It apologised for these errors in its letter of 21 May 2025. The DfE insists the errors are not material. 33.7. There is no proper basis to allege that the Commissioner had any animus against the Appellant. 33.8. A request does not need to be identical (or even similar) to previous requests to be vexatious. It was open to the DfE to rely on section 14(1) in response to the appeal whether or not it did so at the time of the Request (McInerney v Information Commissioner [2015] UKUT 47 (AAC) at [28] to [42]). Appellant’s Reply[34]The Appellant states that material now disclosed to him via a subject access request shows that in its correspondence with the Commissioner, the DfE explicitly referred to its refusal as a section 14(1) case. That position is inconsistent with the refusal letter. It shows that the statutory basis for refusal was altered without informing the Appellant.[35]This material is important because it reveals how the Commissioner was presented with a different legal basis than the one in the refusal, leading to the unlawful substitution in the Decision Notice.[36]By invoking Stürmer v Information Commissioner and North East Derbyshire District Council [2015] UKUT 0568 (AAC), the DfE is effectively admitting that the Decision Notice was wrong to uphold section 14(1). The judgment confirms that while later developments may influence what steps an authority must take under section 50(4), they cannot retrospectively convert a lawful request into a vexatious one.[37]The Appellant objects to references to “the 18th Abrahart Request”.[38]The DfE’s letter of 12 August 2024 letter gave an explicit assurance that future FOIA requests would be assessed fairly and individually, stating:
“We would like to assure you that our department remains open to considering future FOI requests you submit, the Section 14(1) exemption is not a blanket ban…” and“… we will continue to review each request received on its own merits at the time of the request.”
[39]This assurance followed a short-term cluster of requests and expressly ruled out any blanket or prejudicial treatment based on past activity. It therefore “reset” the DfE’s position going forward and created a legitimate expectation that future requests, including this Request, would be judged independently of earlier submissions.[40]DfE now seeks to justify its refusal by invoking arguments involving past activity in direct contradiction to the assurance given. The 12 August 2024 letter (referred to by the Appellant as the “reset letter”) is central to the context and fairness of these proceedings.

Legal Framework

[41]Legal Framework Section 1 FOIA provides a right of access to recorded information held by public authorities. It provides: General right of access to information held by public authorities (1) Any person making a request for information to a public authority is entitled— (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) if that is the case, to have that information communicated to him.[42]That right is subject to several exemptions, one of which is section 14. The relevant provisions are: Section 14 FOIA:Vexatious or repeated requests (1) Section 1(1) does not oblige a public authority to comply with a request for information if the request is vexatious. (2). Where a public authority has previously complied with a request for information which was made by any person, it is not obliged to comply with a subsequent identical or substantially similar request from that person unless a reasonable interval has elapsed between compliance with the previous request and the making of the current request. … Role of the Tribunal[43]The role of the Tribunal is governed by section 58 FOIA. This requires the Tribunal to consider whether the Commissioner’s Decision Notice is in accordance with the law, or, where the Commissioner’s decision involved an exercise of discretion, whether he should have exercised it differently. The Tribunal may review any finding of fact on which the Decision Notice was based (section 58(2)). This means that we may review all the evidence provided to us (even if that evidence was not before the Commissioner) and make our own decision on the merits.[44]As set out by the Upper Tribunal in NHS England -v- Information Commissioner and Dean [2019] UKUT 145 (ACC) "The First-tier Tribunal ‘exercises a full merits appellate jurisdiction and so stands in the shoes of the IC and decides which (if any) exemptions apply...". This means that the Tribunal can not only consider other arguments raised by the DfE on section 14(2), but also any other exemptions insofar as relevant to matters falling within the scope of the Request.[45]Should the appeal succeed then under section 58(1) the Tribunal can substitute such other notice as could have been served by the Commissioner, but it cannot remit the matter to the Commissioner as the Appellant suggests.

The Issues

[46]The Issues The main issue for the Tribunal to decide is whether the Commissioner was wrong to decide that the Request for information was vexatious under section 14(1) of FOIA or whether the Commissioner ought to have exercised any use of discretion differently. This includes a consideration of section 14(2) as set out above.

The Hearing

[47]The Hearing The hearing was conducted by online video (CVP). The Tribunal was satisfied this was a fair and just way to conduct the proceedings. The Appellant was unrepresented. The DfE was represented by Counsel. Mindful of the imbalance, the Tribunal afforded the Appellant considerable leeway in his questioning of the DfE’s witness and gave him direction when matters strayed off point.[48]The Commissioner notified the Tribunal in advance that he did not intend to appear or be represented at the hearing. He relies instead upon his Decision Notice and his response to the appeal. In reaching our conclusions on the grounds of appeal, the Tribunal has considered the written material relied upon by the Commissioner.[49]The Tribunal received an open bundle of around 1069 pages, a supplementary bundle containing DfE’s response to the appeal plus the Appellant’s reply. For all three appeals, an Authorities bundle of 653 pages was provided along with a supplementary Authorities bundle from the Appellant. Both the Appellant and the DfE provided a skeleton argument.[50]A closed bundle had been produced. Counsel for the DfE confirmed at the start of the hearing for the three appeals that there is no withheld information within the closed bundle for appeal reference 0247.[51]Prior to the hearing, the Tribunal gave permission to the DfE to substitute Elizabeth Franey as a witness in place of Caroline Bicknell at the hearing of these appeals as Ms Bicknell had retired since making a witness statement. With the consent of the Tribunal, a redacted witness statement was submitted by Ms Franey. The redactions concern updates on other appeals brought by the Appellant, which do not shed light on the position at the time of the DfE’s refusal of the Request. Those matters do not assist the Tribunal in its decision in this appeal.[52]Ms Franey attended the hearing and provided oral evidence, which was subject to cross-examination by the Appellant.

Evidence heard

[53]Evidence heard The Appellant’s oral evidence The Appellant submitted that this is a straightforward request for documents from an earlier investigation by the Commissioner into a request made by someone else in 2023. The Request does not ask for legally privileged email chains withheld under section 42 FOIA. They were expressly excluded from the Request. Instead, the Request seeks communications from the DfE to the Commissioner for the earlier complaint made by another requester. These are later created records, which did not even exist at the time of the 2023 request.[54]The purpose of the Request is to understand how the Commissioner and DfE had treated the Request. Understanding how that request developed and how requests are handled is important. The Request concerns substantive new material that DfE had confirmed existed.[55]This is not a ‘fishing expedition’. It is a finite request for an identifiable set of material.[56]The Decision Notice is important. It says that the refusal was because the Request was repetitive and overlapped with a previous request made by people acting in concert. The DfE’s argument of “acting in concert” is invalid as it concerns section 12 FOIA. Another requester cannot be considered as a comparator.[57]The Commissioner’s own guidance refers to ‘vexatiousness by drift’ as a full series of requests that has little to do with the original request, so is of reduced value and purpose. The Appellant argues that the DfE misunderstands ‘drift’ and has not even identified the initial request from which he supposedly drifted. The Upper Tribunal has confirmed that the position must be judged from the standpoint in time of the Request i.e. 31 October 2024. The Request has not changed, just how it has been treated. Critically, DfE accepted that it would not be difficult to provide the information sought.[58]The argument over ‘drift’ holds little value. People can make requests they think of value, whereas ‘drift’ is about requests of no value. It is meaningless to say that the Request is of no value. The Appellant could not believe the DfE’s decision was right in the earlier request. The wording of the Request is important. The information sought is “gold dust” as it helps to know how the DfE formulates a response.[59]The Appellant acknowledged that he cannot re-open or re-argue the earlier request.[60]This is not about the Appellant’s campaign history. The Request should be considered as per the August 2024 “reset letter”. That letter gave reassurance to the Appellant that each of his requests would be considered on their merit, but the DfE did not do that. The Request got dragged into a history of past activity. New activity generates new requests. The DfE, in the Appellant’s view, has a shifting narrative.

DfE’s evidence

[61]DfE’s evidence Whilst not the author, Ms Franey confirmed that the witness statement of Ms Bicknell is true to the best of her knowledge and belief. Ms Franey had not personally dealt with this particular Request.[62]Under cross-examination, Ms Franey confirmed that as far as she is aware the DfE had not received an earlier request asking for the same information from the Appellant. The DfE did have a request from the Appellant’s co-campaigner. Ms Franey accepted they are not the same person.

Findings and Discussion

[63]Findings and Discussion The Request was the 18th FOIA request made by the Appellant to the DfE. It followed the Commissioner’s Decision Notice of 15 October 2024 concerning an earlier complaint made by another requester. The request in that case had been made to the DfE on 3 October 2023 for “appropriately redacted and anonymised copies of every item that was withheld from [name redacted] under section 42 of the FOI Act on 31st August 2023.” This referred in turn to an earlier request made by yet another person on 11 July 2023 for information on “the duty of care owed by higher education providers to their students”.[64]The DfE had provided some information in response to the 11 July 2023 request but refused on 31 August 2023 to disclose other information under section 42 FOIA. The Commissioner’s decision of 15 October 2024 on the subsequent 3 October 2023 request was upheld on appeal to this Tribunal in its decision of 29 July 2025. The Request in this appeal seeks copies of documents submitted by the DfE to the Commissioner during his investigation, excluding only email records identified as containing exempt information under section 42 FOIA.[65]The Appellant says that he now possesses the information being requested. If the SFCM letter has been obtained via earlier Tribunal proceedings, it cannot be used outside of those proceedings, but the Appellant still has the information he sought. This appeal has continued to fruition because the Appellant feels aggrieved by his request being labelled as ‘vexatious’ and is concerned over the possible effect on subsequent requests and appeals. Of course, it does not automatically follow that a decision either way on this specific appeal would influence the outcome on a different request and appeal. The availability of the SFCM letter through other means is not relevant to our assessment of whether or not the Request was vexatious.[66]A major strand of the Appellant’s case is his grievance that the DfE’s refusal of his Request relied upon section 14(2) FOIA, but during this appeal it seeks to argue section 14(1) also. We address the procedural fairness point raised at the outset.[67]The DfE’s refusal letter of 25 November 2024 referred only to section 14 FOIA. It did not explicitly refer to section 14(2), but the decision was said to be made “as the request is deemed to be repetitive, as it closely mirrors a request recently submitted by your co-campaigner.” Explicit use of the word “repetitive” in the context of another complaint firmly points to reliance on section 14(2), which is also the basis of the Appellant’s understanding. We find that the Commissioner was wrong to say at paragraph 1 of the Decision Notice that “The DfE refused the request as vexatious under section 14 FOIA”.[68]The Commissioner’s Decision Notice upheld the refusal under section 14(1) FOIA. Therefore, section 14(1) was already at the forefront of this appeal as the Tribunal must decide whether the Decision Notice is in accordance with the law. In reaching his decision, the Commissioner was not confined to a consideration of section 14(2). He could consider other potential exemptions. The Tribunal stands in the shoes of the Commissioner and in doing so, can likewise consider other exemptions.[69]Section 14(1) is a ‘new’ argument from the DfE raised during the course of this appeal. However, as recognised by the Upper Tribunal in McInerney at [41] late reliance may effectively be forced on a public authority by the course of events. In this case, the Commissioner’s reliance on section 14(1). The DfE raised section 14(1) in its response to the appeal. The Appellant was on notice from that point in time that the DfE intended to pursue a case under section 14(1) as well as section 14(2). The Appellant replied and addressed the DfE’s section 14(1) arguments. At the hearing, the Tribunal heard from the Appellant and the DfE in relation to both subsections.[70]We are content that there is no procedural unfairness in considering the DfE’s submissions and evidence on section 14(1) in all the circumstances.[71]The Appellant is also aggrieved that the DfE, having sent “the reset letter” of 12 August 2024 [OB226], proceeded to refuse the Request made on 31 October 2024 on the basis that it was a repetitive request under section 14(2) FOIA. We do not interpret the letter as ‘wiping the slate clean’ as the Appellant appears to suggest. The letter relied upon the section 14(1) exemption following the submission of 14 FOIA requests in a short period of time. The letter includes the passage:[72]“We would like to assure you that our department remains open to considering future FOI requests you submit, the Section 14(1) exemption is not a blanket ban. The exemption issued applies to the outstanding requests referred to in our original response. However, we will continue to review each request received on its own merits at the time of the request.” Thus, the DfE made clear that it was not making a blanket ban either against the Appellant personally or any future requests. It did not say that the history of requests would be disregarded. It made plain that each future request would be considered on its merits. Indeed, the fact that DfE subsequently refused the Request as being ‘repetitive’ instead of ‘vexatious’ under section 14(1) illustrates that the Request was considered on its merits. Nothing within the letter gives assurance over future reliance on section 14 or operates as a procedural bar of any kind in this appeal. The reset letter did not prevent a finding of vexatiousness for later requests.

Section 14(1) FOIA

[73]Section 14(1) FOIA We start with section 14(1) FOIA and whether the Request was ‘vexatious’. FOIA does not define what is meant by ‘vexatious’. It is apparent from the wording of section 14(1) that it is the request that must be vexatious, not the Appellant.[74]The Upper Tribunal gave guidance in Information Commissioner v Devon County Council and Dransfield [2012] UKUT 440 (AAC), as upheld and clarified by the Court of Appeal in Dransfield. As noted by Arden LJ in the Court of Appeal, the hurdle of showing a request is vexatious is a high one: “…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. Parliament has chosen a strong word which therefore means that the hurdle of satisfying it is a high one, and that is consistent with the constitutional nature of the right. The decision maker should consider all the relevant circumstances in order to reach a balanced conclusion as to whether a request is vexatious” [68].[75]The Upper Tribunal’s decision in Dransfieldprovides more detailed guidance that was not challenged in the Court of Appeal. The ultimate question is: “is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA?” [43]. In the context of reviewing the Commissioner’s Guidance, the Upper Tribunal highlighted “the importance of adopting a holistic and broad approach to the determination of whether a request is vexatious or not, emphasising the attributes of manifest unreasonableness, irresponsibility and, especially where there is a previous course of dealings, the lack of proportionality that typically characterise vexatious requests” [45]. Arden LJ in the Court of Appeal also emphasised that a “rounded approach” is required [69].[76]Overall, the purpose of section 14 is to “protect the resources (in the broadest sense of that word) of the public authority from being squandered on disproportionate use of FOIA” (Upper Tribunal of Dransfield at [10]).[77]In Craven v ICO & Department for Energy and Climate Change [2015] EWCA Civ 454 the Court of Appeal accepted “there is no warrant for reading section 14 FOIA as subject to some express or implied qualification that a request cannot be vexatious in part because of, or solely because of, the costs of complying with the current request.” [85].[78]This has subsequently been confirmed in Cabinet Office v Information Commissioner and Ashton [2018] UKUT 208 (AAC), in which the Upper Tribunal stated, having considered the relevant case law: “The law is thus absolutely clear. The application of section 14 of FOIA requires a holistic assessment of all the circumstances. Section 14 may be invoked on the grounds of resources alone to show that a request is vexatious. A substantial public interest underlying the request for information does not necessarily trump a resources argument. As Mr Armitage put it in the Commissioner’s written response to the appeal (at §18):• . In deciding whether a request is vexatious within the meaning of section 14(1), the public authority must consider all the relevant circumstances in order to reach a balanced conclusion as to whether a request is vexatious.• . The burden which compliance with the request will impose on the resources of a public authority is a relevant consideration in such an assessment.• . In some cases, the burden of complying with the request will be sufficient, in itself, to justify characterising that 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.” [27][79]The Appellant suggests by reference to the judgment in Sturmer that the Request was not vexatious at the time it was made or responded to and that the Commissioner was wrong to retrospectively decide that section 14(1) was engaged. However, following Dransfield, it is permissible to look beyond the burden of the specific request, to past requests that preceded it. A rounded approach is required which does not leave out of account evidence which is capable of throwing light on whether the request was vexatious.[80]The Commissioner came to a different view from the DfE on which limb of section 14 applied, but there is nothing to indicate that his decision took account of events after the date of refusal. Simply because the DfE relied upon section 14(2) did not prevent the Request being found to be vexatious within section 14(1) upon the Commissioner’s consideration of the complaint. Despite the Appellant’s assertions, the DfE has not admitted that the Commissioner was wrong to rely on section 14(1)[81]When considering the guidance in Dransfield, and taking a holistic approach, we make findings and draw the conclusions below. In doing so, we use the headings as a helpful framework without using them as a checklist. The burden imposed on the public authority by the request[82]As conceded by the DfE, it was wrong to refer to “43 requests under FOIA from the complainant since November 2023” as recorded at paragraph 23 of the Decision Notice. Nevertheless, there had been 17 previous requests from the Appellant and associated correspondence, including internal reviews.[83]The burden may be inextricably linked with a previous course of dealings between the parties. As set out at paragraph [29] of Dransfield, the Upper Tribunal said: “…the context and history of the previous request, in terms of the previous course of dealings between the individual requester and the public authority in question, must be considered in assessing whether it is properly to be characterised as vexatious. In particular, the number, breadth, pattern and duration of previous requests may be a telling factor”.[84]As already indicated, we can look at the burden of the Request in the light of other requests made by the Appellant and related correspondence, up to the point at which the DfE responded to the Request. We have disregarded any matters that took place after the response to the Request, save insofar as they may shed light on the true purpose and circumstances at the relevant time (as per paragraphs 72 and 101 of Dr Yeong-Ah Soh v IC and Imperial College London [2016] UKUT 0249 (AAC)).[85]Like any public authority, the DfE will have limited resource to address FOIA requests. With the Request will have come burden especially when considered in the context of earlier requests. The time taken in dealing with the Appellant’s requests, would have taken staff away from other tasks.[86]Even though the Request had not been made by the Appellant before and it concerned information created after the original request was made, those factors do not prevent the Request from being treated as vexatious. The Appellant is also correct that numbers alone do not make a request vexatious. Plainly, the nature of the Request must be considered, and the context will also be relevant.[87]We accept this was a precise and targeted request. Whilst it may not have been difficult or taken the DfE long to identify the information and provide a response, this was the Appellant’s 18th request to the DfE for information under FOIA. Those requests were made over a 5-month period starting on 24 May 2024. We find no significance in the Request being different from previous ones by seeking information on processes underlying another requester’s request. That earlier request did pertain to the issue of student welfare in higher education that had been the subject of Parliamentary debate in which the Appellant had campaigned. The Request also came on the back of a succession of other requests made to the DfE. This Request should properly be considered in the context of those that preceded it.[88]It is undisputed that the requests also generated voluminous correspondence from the Appellant as he expressed dissatisfaction with the DfE responses. Each request and associated correspondence had to be reviewed, and time taken in responding.[89]The DfE had already informed the Appellant in a letter of 21 June 2024 of the burden placed upon the Department after receiving 14 requests under FOIA from the Appellant “in a very short period”. All 14 were refused under section 14 FOIA. In that letter the DfE explained how it had already provided the Appellant and his co-campaigners with a significant amount of information. It included previous responses to FOIA requests, as well as detailed and considered replies to 38 letters from the Appellant personally since November 2023. Where information could not be provided, reasons had been given and, if relevant, exemptions under FOIA applied. The letter of 24 June 2024 went on to say:
“Unfortunately though, the burden on the Department from these requests is significant and disrupting our ability to progress other work, particularly in relation to student mental health...”
[90]There had been a series of regular requests generating voluminous correspondence and that theme continued with this 18th Request. The resultant cumulative burden placed upon the DfE would have been substantial. The motive of the Requester[91]The Appellant emphasises that the Request was motivated by a desire to clarify how the DfE’s refusal was decided in the request made by a co-campaigner on 3 October 2023. He maintains that any similarity between the Request and any other requests is limited to subject matter in the broadest thematic sense.[92]It is appreciated that the Request does not seek the substantive information sought by the previous requester. He is seeking the internal discussion and reasoning applied by DfE in reaching its decision. He says the Request is not about the outcome but how DfE reached its decision.[93]Through this Request, we accept that the Appellant was not challenging the decision notice issued to the co-campaigner. Rather, the Appellant was seeking information on DfE’s processes. We have difficulty in gauging what could possibly be achieved through the Request for us to ascertain if there was a reasonable foundation for making it. The Appellant himself described the information sought as “gold dust” in understanding the DfE’s processes. That is somewhat difficult to comprehend in the context of someone else’s request on which he had no cause of action. However, we recognise that motive is a difficult matter to discern, and for that reason we accept the Appellant was motivated by achieving better understanding of the DfE’s processes.[94]Nevertheless, having received an unredacted copy of the SCFM letter which the Appellant says was what he wanted from this Request, it does appear to the Tribunal that the Appellant will never be satisfied by the information received and further requests are bound to follow.

The value or serious purpose of the Request

[95]The value or serious purpose of the Request From all the Tribunal has seen and heard, we are not satisfied that there is a serious purpose to the Request. It is unclear what the Appellant would hope to achieve from the information. Of course, public accountability is important, but it was for the individual concerned to pursue matters further if discontent with how their request was handled. There is a process in place when a FOIA request is refused, involving internal review by the public authority, and statutory provision exists for complaint to the Commissioner followed by appeal to the Tribunal. By the time of the DfE’s refusal, that process was underway for the earlier request of 3 October 2023 with an appeal lodged with this Tribunal. The Appellant was asking for information about a process undertaken by DfE in a matter that was already subject to a statutory process and where the request made by the other requester was being considered afresh.[96]The existence of a legitimate process available to that other individual did not prevent the Appellant from seeking more information. However, the serious purpose had diminished from the core issue of student suicide in higher education to why the DfE decided to make the decision that it did upon internal review on some else’s request.[97]During cross-examination of the DfE’s witness, the Appellant took the witness to the supplementary bundle, which contains a refusal notice from the DfE of 31 December 2025. The refusal notice responds to a request made on 1 December 2025 seeking the same information as the Appellant. When asked to clarify the relevance of the material, the Appellant indicated that it demonstrated wider public interest. Given that the request in the supplementary bundle was made by the same co-campaigner who made the original request of 3 October 2023, it carries little weight in showing public interest in the information sought. The individual was seeking further information in relation to the handling of their own request[98]Ultimately, this was a request seeking information on why the DfE chose to rely on the exemption under section 42 in refusing a request made (by someone else). Whilst the answer to this question may have value to the Appellant, we consider it unlikely to be of much wider public interest. In those terms, the public interest value is low.

Any harassment of, or distress caused to, the public authority’s staff

[99]Any harassment of, or distress caused to, the public authority’s staff There is no suggestion that the DfE’s staff were caused harassment or distress in dealing with the Appellant’s requests. The DfE describes the Appellant himself as “always civil”. A finding of harassment or distress is not a prerequisite for concluding that a request is vexatious.[100]‘Vexatiousness by drift’ The Appellant considers that the DfE has misunderstood and misapplied the meaning of the term ‘vexatious by drift’ in the context of Dransfield. The Court of Appeal at paragraph 37 of Dransfield used the term ‘vexatiousness by drift’ where “later requests have become disproportionate to whatever the original inquiry was”.[101]The purpose of the Appellant’s requests had begun by seeking information on the undoubtedly important topic of student suicide in higher education. By the time of this 18th Request things had moved on. He was now seeking information that informed the DfE’s refusal decision in the earlier request (that did concern the original topic) made by another requester on 3 October 2023. Over time and as more requests were made, the Request had become about something else - the DfE’s decision making and scrutiny of its processes. The Request had strayed some way from the purpose of the original requests related to the duty of care to students in higher education. It had become distant from the starting point. This falls squarely within what the Upper Tribunal in Dransfield described as ‘vexatiousness by drift’. That is so even if the Request was not vexatious when viewed in isolation.[102]The Request cannot sensibly be considered in isolation from other requests the Appellant had already made to the DfE related to the duty of care to students in higher education institutions. It forms part of the history of requests made by the Appellant, in a long line of requests over a relatively short period forming part of a pattern of requests that had turned to DfE’s handling of requests.

Conclusion on section 14(1)

[103]Conclusion on section 14(1) Having considered the circumstances in the round and taking a holistic approach as advocated in Dransfield, we consider that the high bar for vexatiousness was crossed in this case. There was substantial burden placed on the DfE from the number and voluminous nature of requests. By the time of this 18th Request, that burden had become serious and disproportionate. The nature of the Request had changed from how they had started to scrutinising matters of process on someone else’s request. With that change, the serious purpose had diminished. The culmination of factors when taken together in the round cause us to conclude that there was vexatiousness by drift when this 18th Request was made for section 14(1) to apply.

Section 14(2) FOIA

[104]Section 14(2) FOIA We turn to a consideration of section 14(2), which can easily be dispensed with. The wording of section 14(2) is important:
“Where a public authority has previously complied with a request for information which was made by any person, it is not obliged to comply with a subsequent identical or substantially similar request from that person…”
[emphasis added].[105]At the hearing the DfE accepted that section 14(2) requires the later request to be made by the same person. It was further agreed that the Appellant had not made the same request before or in substantially similar form. The argument advanced by Counsel for the DfE was that the Request was made by different persons “acting in concert” i.e. the Appellant acting with other campaigners. “Acting in concert” is a term utilised in section 12(4)(b) FOIA. There is no suggestion that section 12 is engaged. We find that the Request had not been made by the Appellant previously and section 14(2) was not engaged.

Overall Conclusion

[106]Overall Conclusion The Commissioner was wrong to say at paragraph 1 of the Decision Notice that “The DfE refused the request as vexatious under section 14 FOIA”. However, the Commissioner was not wrong to conclude that section 14(1) FOIA was engaged because the Request was vexatious. It follows that the appeal must be dismissed. e Appellant p of different types) Quash Decision Notice IC-384903-D6V9 IC-401829-R1Z6, Signed: Judge Saward Date: 17 August 2026

Cited in 1 later judgment