IC v Dransfield [2012] UKUT 440 (AAC)

UKUT-AAC

IC v Dransfield

[2012] UKUT 440 (AAC) · 2013-01-28

[28]Such misuse of the FOIA procedure may be evidenced in a number of different ways. It may be helpful to consider the question of whether a request is truly vexatious by considering four broad issues or themes –(1) the burden (on the public authority and its staff);

(2) the motive (of the requester);

(3) the value or serious purpose (of the request) and

(4) any harassment or distress (of and to staff). However, these four considerations and the discussion that follows are not intended to be exhaustive, nor are they meant to create an alternative formulaic check-list. It is important to remember that Parliament has expressly declined to define the term “vexatious”. Thus the observations that follow should not be taken as imposing any prescriptive and all encompassing definition upon an inherently flexible concept which can take many different forms . (1) The burden 29. First, the present or future burden on the public authority may be inextricably linked with the previous course of dealings. Thus the context and history of the particular 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. 30. As to the number , the greater the number of previous FOIA requests that the individual has made to the public authority concerned, the more likely it may be that a further request may properly be found to be vexatious. Volume, alone, however, may not be decisive. Furthermore, if the public authority in question has consistently failed to deal appropriately with earlier requests, that may well militate against such a finding that the new request is vexatious. 31. As to their breadth , a single well-focussed request for information is, all other things being equal, less likely to run the risk of being found to be vexatious. However, this does not mean that a single but very wide-ranging request is necessarily more likely to be found to be vexatious – it may well be more appropriate for the public authority, faced with such a request, to provide advice or guidance on how to narrow the request to a more manageable scope, failing which the costs limit under section 12 might be invoked. 32. As regards the pattern , a requester who consistently submits multiple FOIA requests or associated correspondence within days of each other, or relentlessly bombards the public authority with e-mail traffic, is more likely to be found to have made a vexatious request. 33. Likewise, as to duration , the period of time over which requests are made may be significant in at least two ways. First, a long history of requests e.g. over several years may make what would otherwise be, taken in isolation, an entirely reasonable request, wholly unreasonable in the light of the anticipated present and future burden on the public authority. Second, given the problems of storage, public authorities necessarily have document retention and destruction policies in place, and it may be unreasonable to expect them to e.g. identify whether particular documents are still held which may or may not have been in force at some perhaps now relatively distant date in the past. (2) The motive 34. Second, the motive of the requester may well be a relevant and indeed significant factor in assessing whether the request itself is vexatious. The FOIA mantra is that the Act is both “motive blind” and “applicant blind”. There is, for example, no need to provide any reason for making a request for information under section 1; nor are there any qualifying requirements as regards either the identity or personal characteristics of the requester. However, the proper application of section 14 cannot side-step the question of the underlying rationale or justification for the request. What may seem an entirely reasonable and benign request may be found to be vexatious in the wider context of the course of dealings between the individual and the relevant public authority. Thus vexatiousness may be found where an original and entirely reasonable request leads on to a series of further requests on allied topics, where such subsequent requests become increasingly distant from the requester’s starting point. 35. In this context it is important to bear in mind that the right to information under FOIA is a significant but not an overriding right in a modern democratic society. As has already been noted, it is a right that is qualified or circumscribed in various ways. Those restrictions reflect other countervailing public interests, including the importance of an efficient system of public administration. Thus section 14 serves the legitimate public interest in public authorities not being exposed to irresponsible use of FOIA, especially by repeat requesters whose inquiries may represent an undue and disproportionate burden on scarce public resources. In that context it must be relevant to consider the underlying motive for the request. As the FTT observed in Independent Police Complaints Commission v Information Commissioner (EA/2011/0222) (at paragraph 19):

“Abuse of the right to information under s.1 of FOIA is the most dangerous enemy of the continuing exercise of that right for legitimate purposes. It damages FOIA and the vital rights that it enacted in the public perception. In our view, the ICO and the Tribunal should have no hesitation in upholding public authorities which invoke s.14(1) in answer to grossly excessive or ill-intentioned requests and should not feel bound to do so only where a sufficient number of tests on a checklist are satisfied.” 36. This approach should not be seen as giving licence to public authorities to use section 14 as a means of forestalling genuine attempts to hold them to account. For example, an investigative journalist may make a single request which produces certain information, the contents of which in turn prompts a further request for more information, and so on. Such a series of requests may be reasonable when viewed both individually and in context as a group. The same may also be true of a request made by a private citizen involved in a long-running dispute or exchanges with the public authority (see e.g. Ainslie ). As the IC’s Guidance for public authorities helpfully advises (p.3): “Many previous cases of vexatious requests have been in the context of a longstanding grievance or dispute. However, a request will not automatically be vexatious simply because it is made in the context of a dispute or forms part of a series of requests. There may be genuine reasons for this. For example, a series of successive linked requests may be necessary where disclosures are unclear or raise further questions that the requester could not have foreseen. Similarly, in the context of a dispute, a request may be a reasonable way to obtain new information not otherwise available to the individual. You should not use section 14 as an excuse to avoid awkward questions that have not yet been resolved satisfactorily. You must always look at the effect of the particular request and consider the questions [the five factors] set out below.” 37. However, in other circumstances a series of requests may suggest that later requests have become disproportionate to whatever the original inquiry was. Mr Cross, in the course of argument in Ainslie , described this phenomenon as “spread”

. I prefer the term used by Judge Jacobs in Wise , namely “vexatiousness by drift” (see paragraph 17 above). The background to that application for permission to appeal was that entirely unsubstantiated allegations had been made to the police and social services about Mr Wise. In particular, Mr Wise was unhappy about the way that the police handled the matter. He then made a series of successive FOIA requests to different public authorities about a wide range of different matters, which became wholly disproportionate to his original aim. I emphasise, however, that “drift” is not a prerequisite to a finding that section 14 applies, as by definition it may only arise where there is a previous course of dealings – a single well-defined and narrow request put in extremely offensive terms, or which is expressly made purely to cause annoyance or disruption to the public authority rather than out of a genuine desire for the information so requested, may be vexatious in the complete absence of any such drift. (3) The value or serious purpose 38. Third, and usually bound up to some degree with the question of the requester’s motive, is the inherent value of the request. Does the request have a value or serious purpose in terms of the objective public interest in the information sought? In some cases the value or serious purpose will be obvious – say a relative has died in an institutional setting in unexplained circumstances, and a family member makes a request for a particular internal policy document or good practice guide. On the other hand, the weight to be attached to that value or serious purpose may diminish over time. For example, if it is truly the case that the underlying grievance has been exhaustively considered and addressed, then subsequent requests (especially where there is “vexatiousness by drift”) may not have a continuing justification. In other cases, the value or serious purpose may be less obvious from the outset. Of course, a lack of apparent objective value cannot alone provide a basis for refusal under section 14, unless there are other factors present which raise the question of vexatiousness. In any case, given that the legislative policy is one of openness, public authorities should be wary of jumping to conclusions about there being a lack of any value or serious purpose behind a request simply because it is not immediately self-evident. (4) Causing harassment of, or distress to, staff 39. Fourth, vexatiousness may be evidenced by obsessive conduct that harasses or distresses staff, uses intemperate language, makes wide-ranging and unsubstantiated allegations of criminal behaviour or is in any other respects extremely offensive (e.g. the use of racist language). As noted previously, however, causing harassment or distress is not a prerequisite for reaching a conclusion that a request is vexatious within section 14. Where does this leave the Information Commissioner’s Guidance? 40. This case is not an appeal against the IC’s Guidance. Nor is it a judicial review of that Guidance. With those caveats in mind, I simply make the following five observations. 41. First, there is much to commend in the IC’s Guidance. I am sure that it serves an important purpose in seeking to encourage both good practice and consistency in public authorities which are faced with making decisions about whether particular requests are vexatious or not. The comments that follow should not be seen as detracting from the valuable role played by the IC in producing such guidance for requesters and public authorities alike. 42. Second, however, the five factors are at best pointers to potentially relevant considerations. They may even be “admirable signposts”, to adopt the language of Woolf J. (as he then was) in Crake v Supplementary Benefits Commission

[1982] 1 All ER 498

(commenting on the then Commission’s published criteria on the “cohabitation rule”, used by the social security authorities for assessing whether or not a couple were living together as husband and wife for benefit purposes). However, rather like the sentencing guidelines in the criminal courts, or the welfare checklist in children’s proceedings, the five factors in the IC’s Guidance are “guidelines not tramlines” – so they may indicate more than one potential destination, rather than end up at a single inevitable terminus. They are at most a tool for assisting with structured decision-making. 43. Third, it follows that the five factors must be viewed as a means to an end, and not as an end in themselves. To that extent I have some reservations about the passage in the IC’s Guidance (p.2) which advises public authorities that:

“ To judge a request vexatious, you should usually be able to make relatively strong arguments under more than one of these headings.”

This is acceptable if it is simply saying that a request which “ticks more than one box” of the five factors to an appreciable extent is more likely on a proper consideration to be found to be vexatious than one that “ticks only one box”. However, it should not be read as implying that a request which only triggers one of the five factors can never be vexatious. The five factors are simply a non-exhaustive and illustrative list of matters that may point to a finding that a request is vexatious. The presence, or absence, of a particular feature is not determinative. So one particular factor alone, present to a marked degree, may make a request vexatious even if no other factors are present. The question ultimately is this – is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA?

[44]Fourth, a FTT charged with determining an appeal against a Decision Notice based on a finding that section 14 applies, which simply structures its own decision and reasoning around the IC’s five factors, faces a number of potential dangers. There is the risk that the tribunal will fall into the trap of analysing the IC’s guidance as if it were statute, when it is no more than “soft law” at best. There is also the danger that an undue focus on the five factors may result in another highly relevant consideration being omitted from the balancing exercise, simply because it does not fit neatly into the IC’s five-fold typology. It is, moreover, not entirely satisfactory that a tribunal charged with deciding whether or not a Decision Notice is “in accordance with the law” (FOIA, section 58(1)(a)) should then place undue emphasis on guidance produced by one of the parties to those proceedings, albeit one whose public role is, in effect, as an independent guardian of the principles underpinning FOIA.45. Fifth, it is, of course, not my function to re-write the IC’s Guidance. However, in accordance with the thrust of this decision, it may be that the Guidance needs to place greater weight on 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. I would also just add this comment – although each of the potted case summaries in the Guidance illustrating the five factors is clearly headed “ Example ”, there is inevitably a risk that these case studies may encourage some individuals to engage in a detailed but ultimately unhelpful forensic analysis to show why their case is different on the facts to the one referred to in the IC’s Guidance. The danger, therefore, is that of not being able to see the vexatious wood for all the individual trees. The background to the present appeal (EA/2011/0079) Introduction

46. I must now apply the general principles set out above in the context of this particular appeal. In doing so I shall explain, first, why I conclude that the FTT misapplied the test under section 14 of FOIA and, second, why the IC’s Decision Notice was correct to conclude that Mr Dransfield’s request was vexatious. Before doing so, the background needs to be set out. The FOIA request of 29 May 2010

47. On 29 May 2010 Mr Dransfield wrote a short and simple letter to Devon CC (copied to the Health and Safety Executive) in the following terms:

“Dear Sir Dangers at Exeter Chiefs Rugby Ground (ECRG) and Pedestrian Bridge: FOIA Request I wish to draw your attention to serious Health and Safety issues connected to the subject title. The ECRG and Pedestrian Bridge have not been provisioned with minimum Lightning Protection System (LPS) which in turn compromises public safety at the ECRG and the Pedestrian Bridge. Under protection of the FOI Act please provide me with the approved design drawings for the Pedestrian Bridge and the LPS test results since the Devon County Council adopted the Pedestrian Bridge. As you are aware, the HSE and the DCC have placed a lifetime email ban on me, hence I am forced into writing to both parties which causes me inconvenience.”

With thanks Yours sincerely Alan M Dransfield” Devon CC’s response of 23 July 2010 48. On 23 July 2010 Devon CC declined to respond on the basis that the request of 29 May 2010 was vexatious within the terms of section 14(1). Having referred to the IC’s Guidance and the five factors, the public authority explained its reasoning as follows (emphasis in the original):

“Since 2005 you have engaged Devon County Council in voluminous correspondence in relation to a wide range of health and safety matters. It is our view that this level of contact with the authority is both disproportionate and obsessive in nature. Further to this, we consider that your approach to Devon County Council and the requests you have made constitutes an unreasonable level of harassment. In many of your requests and correspondence you have made allegations against both the authority and individual officers, which have understandably caused distress to those staff. Although we accept your belief that your requests are for a serious purpose, for example to uncover failings in health and safety standards, we do not consider your level of contact with Devon County Council on these broad matters to be proportionate. Further to the Information Commissioner’s guidance ‘Vexatious requests – a short guide’, ‘ … the purpose or value must justify both the request itself and the lengths to which the campaign or pattern of behaviour has been taken’ . We do not believe your approach to be proportionate to the purpose or value you place on this campaign to uncover health and safety flaws. The continual correspondence from yourself over the years in relation to lightning protection and health and safety is in our opinion an unjustified distraction from the Council’s core functions and imposes a significant burden of both time and expense. We therefore wish to apply section 14(1) (vexatious requests) to this request.”

The IC’s Decision Notice (FS50317322) of 16 March 2011 49. The effect of the IC’s Decision Notice, upholding Devon CC’s decision to invoke section 14, is noted at paragraph 2 above. The Decision Notice summarised the chronology of the case and the IC’s investigation, followed by an analysis structured in terms of its context and history allied with a detailed consideration of each of the five factors. The IC summarised his reasoning as follows (at paragraph 62):

“62. As explained earlier in this notice it is not necessary for every factor relevant to vexatious requests to be satisfied in order to refuse a request on the basis of section 14(1). In this case the Commissioner considers that there are sufficient grounds to justify upholding the application of section 14(1). The Commissioner accepts that, although the complainant had a serious purpose in making this request, it is outweighed by the fact that his previous requests have had the effect of harassing the public authority. The Commissioner considers that the volume and frequency of correspondence, in the wider context of this request and earlier related correspondence are relevant in determining whether the request can be fairly characterised as obsessive. The Commissioner also considers that the Council’s compliance with this request will not be the end of the matter and, in line with the complainant’s previous behaviour, would likely lead to further correspondence and requests. The Commissioner is satisfied that, when taken in the context of previous correspondence and requests, this request could reasonably be considered to be vexatious.”

The FTT’s decision in the present appeal (EA/2011/0079) The FTT’s findings 50. The FTT’s conclusion was that Mr Dransfield’s request of 29 May 2010 was not vexatious within the meaning of section 14(1). In the course of reaching that conclusion, the tribunal made a number of findings of fact. The four most significant ones may be summarised thus (references in parentheses are to the FTT’s reasons): (a) the request of 29 May 2010 was, on the face of it, “very straightforward” [21] and “entirely benign” [32]; furthermore, “it is clear that the reason the request was refused had nothing to do with the request itself. Rather, it had to do with the history of prior dealings between the parties in relation to prior requests” [32]; (b) the number of prior requests and correspondence listed in the evidence had been accepted by Mr Dransfield as accurate [23], and was summarised by the FTT at [24]; there was, however, “no single underlying complaint linking these various requests” [37]; (c) Mr Dransfield was asked to explain why he was interested in the subject matter of the request but “his answer did not shed much light save to indicate that he considers that the LPS in effect is inadequate without explaining why he considers it to be inadequate” [30]; (d) Mr Dransfield’s “language and tone goes beyond what might be characterised as a reasonable level of frustration expressed by somebody who is being denied what he considers he is entitled to. He makes repeated accusations of fraud, malfeasance and criminal behaviour. There is nothing on the evidence before us to support such accusations and indeed if there was, then the proper course of action would be to approach the police or other law enforcement authority, rather than continuing to harass the Council” [42]. The FTT’s reasoning 51. The core of the FTT’s reasoning to support its conclusion that the request of 29 May 2010 was not vexatious is to be found in paragraphs [32]-[38] of the tribunal’s reasons. The FTT accepted that context and history were important considerations in determining whether a request was vexatious [33] (the FTT refer to “obsessive” but in the context clearly meant “vexatious”). However, the tribunal then sought to make the following distinction (at [34]):

“Typically, however, in those cases, there has been an underlying grievance at the heart of the request in issue, and at the heart of a series of previous requests and correspondence. More often than not, each response from the public authority has given rise to further requests, and each perceived obstruction in the response, has given rise to further allegations, all reverberating back to the original grievance. Even where the original grievance may have been independently investigated, sometimes several times, the requester has remained dissatisfied and has continued to make ongoing requests for information in an attempt, in effect, to pursue his complaint by alternative means.” 52. The FTT then referred to a number of first instance decisions in which an apparently “benign” request had been found to take on a vexatious quality, seen in the light of its context and history [35]. The FTT reasoned further as follows (at [36]-[38]): “36. In all these cases, it was important and relevant, when assessing whether the request in issue was vexatious, to consider the history of the requester’s dealings with the public authority. There is, however, an important distinction to be drawn between taking into account the history and context of a request, as in the cases referred to above, and taking into account the history and context of other requests made by a requester or other dealings between the requester and the public authority. The former is an entirely proper and valid consideration. The latter risks crossing the line from treating the request as vexatious, to treating the requester is vexatious. That line, in our view, was crossed in the present case. 37. The Appellant here made 11 requests from the period February 2005 to May 2010 (including the request in issue in this appeal), so a little over 2 requests per year. The requests concerned four different subjects. From the information provided by the Council, it appears that three of those four subjects were in relation to safety and LPS issues of built structures. The other request (in relation to the Lafarge Concrete scandal) was of a different nature, although still on the general subject of health and safety. Only one previous subject concerned a pedestrian bridge, and that was at a school. The present request was made a year after the previous requests. It concerned a different site and may well have raised different health and safety considerations. There was no single underlying complaint linking these various requests. 38. In these circumstances, we do not consider that the present request can be said to be a continuation of the previous requests, and we consider that the Council was not entitled, under section 14(1), to refuse the request on the basis of the past history. We accept that there is a link between the subject matter of the present request and the Appellant’s previous requests, in that they have all concerned safety issues and that most have concerned LPS. However, we do not consider that this similarity of subject matter is enough for this request to be seen as a continuation of the previous requests and thus infected by the history of those requests. It must often be the case that people will want to make a number of different requests on broadly the same subject area. Journalists and other types of researchers must do so frequently. Apart from the cost considerations in section 12, there is nothing in FOIA that is hostile to this.”

The parties’ submissions 53. Mr Cross, for the IC, argued that the FTT had erred in law, essentially in two respects. First, he argued that the FTT had applied the wrong legal test in considering section 14(1) and had failed to explain its reasoning adequately. His submission was that the FTT had drawn an erroneous distinction between two types of cases in which there had been a past course of dealings between the requester and the public authority. The first was where there was a single underlying complaint, linking the previous correspondence and/or requests with the request at issue, which could sustain a finding that the most recent request was vexatious. The second type of case was where there was no single underlying complaint, but only the same or similar subject matter, in which case the FTT held that section 14 could not be invoked. In short, a public authority could not treat an otherwise benign request as vexatious unless it involved the continuation of the same complaint. Furthermore, according to Mr Cross, the FTT had not explained why the request in this particular case was not closely related to the previous history. 54. Mr Cross’ second and supplementary submission was that, even if I was not with him on his primary argument, the FTT had erred in law in that it had plainly failed to have regard to a number of highly material considerations in deciding that the request in question was not vexatious. In particular, the FTT had disregarded the potential burden on the public authority as well as what he said were Mr Dransfield’s intemperate allegations of fraud and malfeasance. 55. Ms Kamm, for Devon CC, supported Mr Cross’s primary submission. She argued that the distinction drawn by the FTT would result in endless disputes about whether a request concerned the same underlying complaint or only a shared subject matter. Ms Kamm also went a step further than Mr Cross in attacking the FTT’s reasoning. In short, given the unchallenged findings on the evidence, she argued that its decision was perverse in the legal sense, namely a decision that no reasonable tribunal could come to, properly directing itself as to the law and its application to the relevant facts. 56. Mr Dransfield’s submissions, both on paper and in person, roved far and wide. He told me, however, that the FTT’s decision had “restored his faith in FOIA”. He conceded that he had made allegations about Devon CC’s conduct but, he said, he had not been abusive. Devon CC might seek to rely on what they described as his haranguing tone, but if they had done their job properly then he would not have had to resort to such language. He was being unfairly characterised as making vexatious requests when he was simply seeking to expose wrongdoing by the public authority, in terms of failing to address both health and safety issues and various financial irregularities. Furthermore, the IC’s appeal against the FTT’s decision in his favour was, in his words, “dead in the water”, as both the Commissioner and the public authority had relied on “ghost documents”; namely, they had conspicuously failed to produce any of the alleged previous FOIA requests to the Upper Tribunal. He conceded that at the FTT hearing he may have said that the list of his previous contacts with Devon CC was accurate, but the relevant FOIA requests were not contained in the bundles before the FTT and the Upper Tribunal. The Upper Tribunal’s analysis of the FTT’s decision and reasons 57. Plainly the FTT’s decision must be read as a whole. I acknowledge that minute textual analysis of a single sentence in a decision, taken out of context, might suggest there has been an error of law where the reasons, viewed as a whole, indicate otherwise. 58. I have no hesitation in accepting Mr Cross’s primary submission. The FTT adopted too restrictive an approach to the application of section 14 in paragraphs [31]-[38] of the reasons for the decision. In particular, the FTT relied on an unwarranted distinction between two types of case in which there has been a past course of dealings. The FTT’s view was, in effect, that where the link between the request in issue and the previous course of dealing was one of subject matter alone, then the public authority could not treat the request as vexatious on the basis of that course of dealing, whatever other considerations might suggest. On the FTT’s approach, there had to be some “underlying grievance”, not simply a “similarity of subject matter” in order for section 14 to bite. 59. I see no particular problem with paragraph [34] of the FTT’s decision (see paragraph 51 above), not least as the description there of the paradigm case is qualified by the key word “typically” at the outset of that discussion. The problem comes later in the decision, and especially in paragraphs [37] and [38]. I bear in mind my own caveat at paragraph 57 above, but the FTT’s finding that “we do not consider that the present request can be said to be a continuation of the previous requests, and we consider that the Council was not entitled, under section 14(1), to refuse the request on the basis of the past history” highlights the error in the FTT’s approach. In short, the FTT boxed itself in. Its reasons indicate that it took the view that, unless there was something more than “broadly the same subject area” linking the request with the previous dealings, then the request could not be vexatious as a matter of law as it was not “thus infected by the history of those requests”. The final three sentences of paragraph [38] admit of only this reading, as Mr Cross argued. The FTT’s approach was that a purportedly benign request could only be characterised as vexatious if it was a continuation of the same underlying complaint as a previous course of dealing. In doing so, the FTT, to use now rather dated public law language, fettered its discretion. Thus the tribunal failed to consider the question of whether the request was vexatious in the round, as discussed above. 60. For the avoidance of doubt, I also accept Mr Cross’s argument that even if the FTT did not misdirect itself in law on this point, it failed to explain why the request was not sufficiently closely linked to the previous course of dealing to be capable of being treated as vexatious. The linkage between the various requests was, quite simply, obvious. Each and every request was in the area of health and safety, and all related to LPS issues (other than the request concerning what was known as the Lafarge Concrete Scandal). Mr Cross is also right in arguing that the FTT failed properly to bring into the overall balancing exercise factors which were plainly relevant to the section 14 question, such as the likely future burden on the public authority and Mr Dransfield’s intemperate language. These were dealt with by way of afterthoughts at the end of the reasons for the decision, rather than being brought into the substantive equation and analysis. 61. Given my conclusion on Mr Cross’s primary submission, I also do not have to make a definitive ruling on Ms Kamm’s alternative submission that the FTT’s decision was perverse in the sense that no reasonable tribunal could have arrived at that result. A claim that a tribunal’s decision is perverse or irrational means that it must be shown that the tribunal’s findings and conclusion were so “wildly wrong” as to merit being set aside (see Sir John Donaldson MR in the Court of Appeal’s decision in Murrell v Secretary of State for Social Services , reported as Appendix to Social Security Commissioner’s decision R(I) 3/84 ). This is self-evidently a demanding test with a high threshold. Whilst I would accept that the FTT’s decision in this case was surprising, given the uncontroverted evidence, I would simply say that I am not sure it was quite so surprising as to be perverse. I bear in mind that the question as to whether a particular request is vexatious involves a multi-faceted balancing exercise and issues of judgement. As

Judge Jacobs explained when refusing permission to appeal in Wise (GIA/1871/2011) at paragraph 9:

“This affects the way that the Upper Tribunal approaches the question of whether the First-tier Tribunal made an error of law. It is the nature of matters of judgment that different panels, each acting quite properly and on the correct understanding of the law, may come to different conclusions. It is not for the Upper Tribunal to substitute its own judgment in such cases. The Upper Tribunal’s role is to decide if the First-tier Tribunal was entitled to exercise its judgment as it did.” 62. For the reasons given above, I have concluded that the FTT was not entitled to exercise its judgment as it did. In effect, it fettered its discretion in its approach to the proper application of section 14, and so erred in law. I therefore allow the IC’s appeal against the FTT’s decision, which I also set aside. The Upper Tribunal’s disposal of the underlying appeal Introduction 63. Mr Cross and Ms Kamm both invited me to re-make the FTT’s decision myself, rather than remit the case for re-hearing before a fresh FTT. There were no significant factual disputes to resolve and no particular need for the combination of information rights expertise available to a three-person FTT panel, e.g. in terms of the resolution of complex public interest issues. Mr Dransfield, naturally, supported the FTT’s decision on its merits. He did not express a view either way as to what action I should take in the event I were minded to allow the IC’s appeal. I take it that his position is that I should reach the same decision as the FTT did. 64. I agree with Mr Cross and Ms Kamm that I should re-make the decision under appeal. There is no warrant either for further delay or further public resource to be devoted to the matter. The Upper Tribunal’s reasoning 65. I adopt the approach to the meaning of a “vexatious” request as set out at paragraphs 24 – 39 above. 66. Applying that approach, I have no hesitation in finding that Mr Dransfield’s request of 29 May 2010 was vexatious. I accept that on the face of it at least, it was short, well-focussed and apparently “benign”

. I also acknowledge that, standing alone, dealing with that specific request may not have involved a significant burden on the public authority. However, those are not the only considerations. Rather, it is important to look at all the circumstances when assessing whether or not a request is vexatious within section 14. Was this request vexatious in the light of the previous course of dealings between Mr Dransfield and Devon CC? The answer to that question is unquestionably yes, taking into account the following three considerations in the context of this request. (1) The burden 67. First, the volume of the previous requests and correspondence imposed a considerable burden on the public authority. The request of 29 May 2010 followed an extensive course of dealings between Mr Dransfield and Devon CC. Between 9 February 2005 and 28 May 2009, Mr Dransfield wrote some 40 letters, including several FOIA requests, to the Council. Each and every letter concerned some aspect of health and safety. Most of that previous correspondence concerned issues around LPS, as did the request of 29 May 2010. The FTT summarised the correspondence as follows (at paragraph [24]):

“In brief · From the period 9 February 2005 to 25 June 2005, there was one FOIA request made on 11 February 2005 concerning the “Lafarge Concrete Scandal”, and 16 items of correspondence on the same subject. · From the period 1 December 2005 to 11 March 2007, there were 3 FOIA requests concerning the safety and LPS in relation to a pedestrian bridge at a private finance initiative (“PFI”) site, and 6 items of correspondence on the same subject. · From the period 28 January 2008 to 28 May 2009, there were 18 items of correspondence concerning health and safety files for PFI and LPS. There were also 6 FOIA requests on the same subject.” 68. The FTT noted that “We have not been provided with copies of these requests or related correspondence”

(at paragraph [25]). However, the papers before the FTT included a potted summary of this history, demonstrating the considerable quantity of prior requests and correspondence. The FTT expressly noted that “the Appellant accepted at the hearing that this summary is accurate” (at paragraph [23]). In these proceedings before the Upper Tribunal, Mr Dransfield has sought to row back from that position. He has consistently referred to these FOIA requests as “ghost documents” and insisted that they should be produced by the IC or the Council in the course of the present proceedings. At one stage he made an unsuccessful application to have the IC’s appeal struck out on this basis. He accepted that he had made the concession noted at the hearing but in effect now demanded that the IC and the public authority be put to proof. 69. I do not find Mr Dransfield’s arguments on this point persuasive. The actual letters and FOIA requests were not before the FTT. The agreed chronology was. The time to challenge that history was then, before the FTT, and Mr Dransfield cannot now, in an appeal confined to points of law, seek to re-litigate a point he had conceded at an earlier stage. I note that Mr Dransfield, whilst referring to the listed FOIA requests as “ghost documents”, has not denied that he wrote the many letters in the other further correspondence referred to in the summary. There is no doubt in my mind that the list produced for the FTT was accurate and was rightly accepted as such. For example, the IC’s Decision Notice quoted extensively from some of that very correspondence. 70. Furthermore, the future burden must be considered. The history of the previous course of dealings demonstrates a high likelihood that, if the public authority had responded in the normal way to the request of 29 May 2010, it would have faced a barrage of further correspondence and requests. These would have placed a quite unreasonable burden on the public authority’s staff and represented a wholly disproportionate drain on their resources. For example, the initial letter of 9 February 2005, relating to the Lafarge Concrete Scandal, was followed by another letter on 10 February 2005, a new FOIA request on 11 February 2005 and a further 8 letters on that same topic in that same month alone. (2) Motive, value and purpose 71. The file shows beyond any shadow of a doubt that Mr Dransfield regards himself as a lone prophet, a man with a mission to expose the alleged failings of Devon CC in the field of health and safety, particularly (but not exclusively) in relation to LPS matters, whose efforts in the public interest have been thwarted at every turn by a conspiracy that in his view now includes Devon CC, the Information Commissioner and the Health and Safety Executive (amongst others). The IC’s Decision Notice indicated the Commissioner’s view that he was “not convinced that the request in this case lacks serious purpose or value” (at paragraph [60]). The public authority itself also conceded that Mr Dransfield “believes his request has a serious purpose; to uncover failings in health and safety issues which he believes to be potentially life threatening” (at paragraph [54]). However, this consideration is more than outweighed by the other considerations, discussed here, which lead me to the conclusion that, taken in the round, the request of 29 May 2010 was disproportionate and vexatious. 72. I also note the FTT’s observation (at paragraph [27]) that in 2009 Mr Dransfield “was found to be repeatedly entering at least one PFI school premises, presumably with a view to proving his assertions about the lack of safety of some of the schools, and that he was subsequently banned from coming on to school premises again”. Such behaviour shows all the hallmarks, Mr Cross argues, of an obsessive and unreasonable campaign lacking in any serious purpose. I agree. (3) Causing harassment or distress 73. There is nothing objectionable at all about the tone of Mr Dransfield’s request of 29 May 2010. It is expressed in perfectly reasonable terms. However, the public authority was entitled to see the request in the context of the tone of much of the correspondence in the previous course of dealings. In those letters Mr Dransfield often adopted a belligerent and unreasonable tone, making repeated accusations of fraud, misfeasance and criminal behaviour but producing no evidence to the FTT (or this Tribunal) beyond his own assertion. The IC gave the following examples in his Decision Notice (at paragraph [42]), citing from Mr Dransfield’s correspondence:

"...your actions and inactions have brought the Devon County Council into disrepute by supplying false and misleading information to the FOI Commissioner Office" (letter dated 26 May 2009). "...I fervently believe that the Devon County Council and you in particular are concocting false information about ISCA and other PFI school data to cover up serious crimes" (letter dated 7 July 2008). "...the Fire Protection and Fire Certificate has been fraudulently approved" (letter to ISCA college dated 11 Mar 2007). "

Further to my recent request to investigate the Devon County Council Officials for fraud and theft of public funds and malfeasance, I now wish to add culpable negligence and conspiracy to cover-up serious crimes" (letter to the Serious Fraud Office dated 27 Feb 2006). "...DCC Legal Advisor and your goodself are conniving and colluding to pervert the Course of Justice for personal and political gain" (letter dated 6 April 2005). "...DCC are disseminating false and misleading information...The DCC CE has abused his power of office SOLELY to cover up his own gross incompetence, neglect and fiduciary failure" (letter dated 11 Mar 2005). 74. The extracts from these letters speak for themselves. I accept that dealing with officialdom can sometimes seem like banging one’s head against a brick wall. The tone of this correspondence does not simply reflect understandable frustration; it suggests a pattern of aggressive and accusatory behaviour against the Council itself and, at times, individual named officers, a pattern now replicated in his dealings with the IC and his staff. The request of 29 May 2010 itself was neither harassing nor distressing; but past experience suggested that future requests would display those characteristics. The Upper Tribunal’s conclusion 75. I therefore conclude that Mr Dransfield’s request of 29 May 2010 was properly adjudged by both Devon CC and the IC to have been vexatious within section 14(1). The reasoning underlying the IC’s Decision Notice, as summarised at paragraph [62] of that document (see paragraph 49 above), does not reveal any material error of fact or law in the approach taken by the Commissioner. It follows that my re-made decision, having already set aside the FTT’s decision (EA/2011/0079) is to dismiss Mr Dransfield’s appeal against the Commissioner’s Decision Notice FS50317322. 76. At the risk of making an already lengthy decision even longer, there are two related matters on which I make brief observations. The Environmental Information Regulations point 77. Devon CC initially dealt with Mr Dransfield’s request under FOIA. There has been some discussion at various stages as to whether the request should probably have been considered under the Environmental Information Regulations as a request for environmental information. If so, the relevant test would have been whether the request was “manifestly unreasonable”. I see no value in exploring this issue in the context of the present appeal. I simply find that even if the EIR were the legally correct regime, the outcome would have been exactly the same on the facts of this case (see further my decision in Craven ). Post-legislative scrutiny of the Freedom of Information Act 2000 78. I did not hear (or invite) argument on the topic of the recent Parliamentary inquiry into the operation of FOIA instituted by the House of Commons Justice Select Committee. However, the following observations may be relevant to the wider context of section 14(1). 79. The Ministry of Justice’s Memorandum to the Justice Select Committee: Post-Legislative Assessment of the Freedom of Information Act 2000 (December 2011) reported that (1) in practice public authorities make little use of section 14(1) when dealing with vexatious requests; and (2) public authorities have expressed concern that section 14(1) is difficult and confusing to use (p.26). According to official statistics, fewer that 400 out of 161,000 “non-routine” FOIA requests between 2005 and 2010 were refused by public authorities under section 14(1). Furthermore, feedback from central government departments was that “it was often less time consuming to respond to a vexatious or repeated requests than to refuse under section 14” (para. 96, p.26). It was also suggested that the absence of any definition of “vexatious” in section 14(1) may have led to a reluctance on the part of public authorities to invoke the provision (para. 99, p.27). 80. The Justice Committee’s subsequent report First Report: Post-legislative scrutiny of the Freedom of Information Act 2000 (HC 96-I) received evidence to similar effect (see chapter 5). However, it made no specific recommendation as regards providing any statutory definition of a “vexatious request”, confining itself to the suggestions that it was difficult to justify an extension expressly to add “frivolous” requests to the scope of section 14 and that public authorities might indicate the approximate cost of responding to FOIA requests when replying to individual requests (HC 96-I, paragraphs 135 and 138). 81. The Ministry of Justice’s formal response to that report, the Government Response to the Justice Committee’s Report: Post-legislative scrutiny of the Freedom of Information Act 2000 (Cm 8505, November 2012), indicates that the Government is “minded to consider whether the Code of Practice issued under section 45 could be amended to provide greater clarity for public authorities in what types of requests may be refused under section 14 and what factors they may consider in deciding whether to employ section 14.” I simply note that the Lord Chancellor’s Code of Practice issued under section 45 of FOIA is not the same as guidance issued by the IC under section 47. I make two further comments. 82. First, calls for greater precision in the definition of what constitutes a “vexatious request” within section 14(1), whilst understandable, may be misplaced. The IC’s Guidance can play an important role in encouraging structured and consistent decision-making, both by his own staff and those responsible for dealing with FOIA requests in public authorities. There is, however, no magic formula – all the circumstances need to be considered in reaching what is ultimately a value judgement as to whether the request in issue is vexatious in the sense of being a disproportionate, manifestly unjustified, inappropriate or improper use of FOIA. 83. Second, the evidence gathered by the Justice Committee suggests that the fact that a significant proportion of the FTT’s caseload (and hence of applications for permission to appeal to the Upper Tribunal) may involve the application of section 14(1) should not necessarily be regarded as typical of the usage of FOIA on the ground. One cannot assume that tribunal appellate decisions are in any way representative of everyday practice; there may well be unique features about cases that are appealed which mean that they are actually unrepresentative of the wider pool from which they are drawn. As the American legal theorist Professor Karl Llewellyn wisely observed, litigated cases are inherently “pathological”; they bear the same relation to the broader set of disputes “as does homicidal mania or sleeping sickness, to our normal life” ( The Bramble Bush (1960), p.58). Conclusion 84. For all the reasons explained above, I allow this appeal by the Information Commissioner, set aside the FTT’s decision under reference EA/2011/0079 and re-make the tribunal’s decision in the terms set out at the head of this decision. The IC’s Decision Notice therefore stands. 85. Finally, I just note for the record that in one of his (many) e-mails received by the Upper Tribunal office after the hearing, Mr Dransfield asked me to award him costs. There is simply no basis on which I could make an order for costs in his favour. Signed on the original Nicholas Wikeley on 28 January 2013 Judge of the Upper Tribunal

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