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Court of Appeal rules on vexatious and unreasonable information requests

The Court of Appeal has handed down a key ruling on the scope of a public authority’s power to reject a request for information as ‘vexatious’ or ‘manifestly unreasonable’.

The case of Dransfield v The Information Commissioner [2015] EWCA Civ 454 concerned three separate appeals brought by Alan Dransfield and Rosalind Jean Craven.

Dransfield had made a Freedom of Information Act 2000 (FOIA) request in 2010 to Devon County Council for approved design drawings of a pedestrian bridge at Exeter Chiefs’ rugby grounds and the lighting protection system results in relation to the bridge. He was concerned about public safety.

Devon refused to give the information, relying on vexatiousness under section 14(1) FOIA. There had been a history of prior FOIA requests and “difficult encounters between the parties”, the First Tier Tribunal (FTT) later noted.

All Craven’s requests to the Department of Energy and Climate Change meanwhile related broadly to the same subject, namely high voltage overhead cables. DECC refused her requests as vexatious under FOIA.

Both Dransfield and Craven applied for a review by the Information Commissioner but he too rejected their requests.

In Craven’s case the Information Commissioner suggested that some of her 2010 requests should have come under the Environment Information Regulations 2004 (EIR). Even so, he concluded that all of her requests had been correctly refused, due either to vexatiousness under section 14(1) or manifest unreasonableness under regulation 12(4)b) EIR.

Dransfield won in the FTT but lost before the Upper Tribunal. Craven lost by a majority in the FTT and appealed without success to the Upper Tribunal (UT).

The case was the first time that the Court of Appeal had had the opportunity to consider the restrictions in section 14 FOIA and regulation 12(4)(b) EIR.

Lady Justice Arden said the appeals raised “different and difficult” questions. However, she concluded that the court should dismiss each appeal.

The Court of Appeal judge described Dransfield's request, taken on its own, as “a precise and politely-worded request”.

“There is nothing on the face of this request which could be termed ‘vexatious’,” she said. “Nonetheless the UT held that it was vexatious because of the past history of dealings between him and the authority.”

The principal issue on Dransfield’s appeal was therefore whether a request could be treated as vexatious if it was not itself vexatious but previous requests had been.

“The FTT thought that the line had to be drawn at previous requests which ‘infected’ the request under consideration,” Lady Justice Arden said, adding that the UT had rejected that test and held that there was no line to be drawn.

Dransfield sought to uphold the test applied by the FTT but Lady Justice Arden said she did not accept this submission because it involved writing words into FOIA which the court may not do.

The UT went on to formulate and apply guidance as to the meaning of "vexatious" which Dransfield had not challenged, the judge added.

In Craven's case, the principal question was whether the tests under section 14 FOIA and regulation 12(4)(b) had the same meaning ("the two-tests-one-meaning issue").

Lady Justice Arden concluded that “to all intents and purposes” they did.

The next questions were whether the Information Commissioner could raise an objection under regulation 12(4)(b) when the authority had not done so, whether section 14 (2) affected the meaning of section 14(1) and whether the costs of compliance could be taken into account under both tests.

Lady Justice Arden agreed with the UT on those points too. She therefore dismissed Craven's appeal as well.

Lady Justice Gloster and Lady Justice Macur agreed.

See also: Vexed by vexatiousness? by Christopher Knight of 11KBW

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