Public bodies could have to disclose information to FOI requesters with 'vengeful' motive, rules UK court

In her leading judgment in a recent case on appeal from the Upper Information Rights Tribunal (UT), Lady Justice Arden said that FOI requesters who make a request for information on the basis of a "bad motive" may nevertheless be entitled to disclosure of that information.

The Court of Appeal was considering whether public bodies can determine FOI requests to be vexatious on the basis of previous communications with the requester even if the requester's latest FOI request, read alone, is not vexatious.

The Court of Appeal ruled that prior communications between an FOI requester and a public body are a factor that public bodies can consider when deciding whether an FOI request is vexatious. The prior communications can help public bodies to determine an FOI requester's motive, it said.

However, the Court said that even if public bodies conclude that an FOI requester is acting with bad motive, they cannot automatically determine their request for information to be vexatious.

Under UK FOI laws anyone of any nationality living anywhere in the world can make a written request for information and expect a response within 20 working days. The public authority is obliged to meet that request unless exemptions apply or unless meeting it will be too costly or difficult. Public bodies can decide not to provide information requested if they deem the request to be vexatious.

The Court of Appeal elected not to define what is meant by 'vexatious' for the purposes of the FOI Act. Guidance on this issue was previously set out by the UT and was not subject to appeal. However, the Court of Appeal offered some additional guidance to public bodies on the extent requesters' motive can influence their consideration of vexatiousness.

"I consider that the emphasis should be on an objective standard and that 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," Lady Justice Arden said.  "The decision maker should consider all the relevant circumstances in order to reach a balanced conclusion as to whether a request is vexatious."

"If it happens that a relevant motive can be discerned with a sufficient degree of assurance, it may be evidence from which vexatiousness can be inferred. If a requester pursues his rights against an authority out of vengeance for some other decision of its, it may be said that his actions were improperly motivated but it may also be that his request was without any reasonable foundation. But this could not be said, however vengeful the requester, if the request was aimed at the disclosure of important information which ought to be made publicly available," the judge said.

In its decision, the Court of Appeal rejected an appeal against the UT's decision to hold as vexatious a campaigner's request for information relating to a pedestrian bridge at a rugby ground in Exeter.

Public bodies have a right to strike out requests for disclosure of 'environmental information' under the Environmental Information Regulations (EIR) if they feel requests for that information are "manifestly unreasonable".

In its ruling, the Court of Appeal said that public bodies can consider a 'manifestly unreasonable' request for environmental information to be almost the same as a vexatious request for information under the FOI Act. It said the difference in meaning between the two terms is "vanishingly small" but that it is possible that EU case law could develop in future to establish a bigger differentiation between their respective meanings.

The Court said that public bodies do not have "to make any detailed investigation into matters which it does not know or are not in the public domain" under the EIR because of the 'manifestly unreasonable' exception.