Dransfield & Anor v The Information Commissioner & Anor

These are separate appeals brought by Mr Alan Dransfield and Mrs Rosalind Jean Craven each raising the question of the scope of the power of a public authority (an “authority”) to reject a request under the Freedom of Information Act 2000 (“(FOIA”) and, in addition, (in the case of Mrs Craven) under the Environmental Information Regulations 2004 (“EIR”) on the grounds that the request was “vexatious” (see section 14(1) FOIA) and (in Mrs Craven’s case) “manifestly unreasonable” (see regulation 12 (4)(b) EIR). The relevant domestic and EU legislation is set out in the Annex to this judgment. The requests of Mr Dransfield and Mrs Craven were rejected by the public authorities to whom they were addressed. Mr Dransfield and Mrs Craven each applied for a review by the Information Commissioner (“the IC”) but he too rejected their requests, so they each appealed to the First-tier Tribunal (“the FTT”). Mr Dransfield succeeded on his appeals to the FTT but lost on a further appeal by the IC to the Upper Tribunal (“the UT”). Mrs Craven’s appeal to the FTT was dismissed by a majority. She appealed, without success to the UT. Both appeals to this court are brought against the orders of the UT (UT Judge Nicholas Wikeley) in each case dated 28 January 2013.

FOIA is an important, constitutional statute because it enables ordinary citizens to obtain the information held by an authority and thus to know what the authority knows. It follows that any restriction on this right must have constitutional implications. As Lord Sumption, with whom Lord Neuberger and Lord Clarke agreed, explained in Kennedy v Charity Commission [2014] 2 WLR 808, the qualifications and exemptions on the right represent a careful balance of the rights of the private citizen and those of the state:

153 The Freedom of Information Act 2000 was a landmark enactment of great constitutional significance for the United Kingdom. It introduced a new regime governing the disclosure of information held by public authorities. It created a prima facie right to the disclosure of all such information, save in so far as that right was qualified by the terms of the Act or the information in question was exempt. The qualifications and exemptions embody a careful balance between the public interest considerations militating for and against disclosure. The Act contains an administrative framework for striking that balance in cases where it is not determined by the Act itself. The whole scheme operates under judicial supervision, through a system of statutory appeals.

Much the same can be said about the right to environmental information, which is now the subject of the EIR, save that it was negotiated at EU level. Environmental information may be very important to the requester since it may affect the region where the requester lives or even the requester’s property. The EIR implement EU legislation, now Directive 2003/4, which falls to be interpreted against the background of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (1998) (known as the Aarhus Convention). The EIR contains an extraordinarily wide definition of environmental information. Requests for environmental information fall to be dealt with under EIR, and not under FOIA: see FOIA, section 39, which exempts a public authority from compliance with FOIA if the EIR apply. There are a number of structural differences between the regimes created by FOIA and the EIR, but none of those differences seem to me to affect the issues to be decided on this appeal. Requesters who are refused information under either regime may request a review by the IC, and appeal to the FTT and UT.

This is the first opportunity which this court has had to consider the restrictions in section 14 FOIA and regulation 12 (4)(b) EIR. This is a lengthy judgment and so I give a summary of my conclusions in paragraphs 5 to 7 below.

The appeals raise different and difficult questions. In my judgment, for the detailed reasons given below, this court should dismiss each appeal.

In Mr Dransfield’s case, the request, taken on its own, is a precise and politely-worded request. There is nothing on the face of this request which could be termed “vexatious”. Nonetheless the UT held that it was vexatious because of the past history of dealings between him and the authority. So the principal issue on his appeal is whether a request can treated as vexatious if it is not itself vexatious but previous requests have been. The FTT thought that the line had to be drawn at previous requests which “infected” the request under consideration (“the current request”). The UT rejected that test and held that there was no line to be drawn. Mr Dransfield seeks to uphold the test applied by the FTT. I do not accept this submission because it involves 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 he has not challenged.

In Mrs Craven’s case, the principal question is whether the tests under section 14 FOIA and regulation 12(4)(b) have the same meaning (“the two-tests-one-meaning issue”). I conclude that to all intents and purposes they do. The next questions are whether the IC could raise an objection under regulation 12(4)(b) when the authority had not done so, whether section 14 (2) affects the meaning of section 14(1) and whether the costs of compliance could be taken into account under both tests (“the costs of compliance issue”). I agree with the UT on those points too. I would therefore dismiss Mrs Craven’s appeal also.

I propose to take the two appeals together, setting out (A) the requests, reviews by the IC and appeals up to the UT and then (B) the submissions on each appeal before turning to (C) Discussion of both appeals.

On 29 May 2010, Mr Dransfield made a short request to Devon County Council (“Devon CC”) under FOIA for approved design drawings of a pedestrian bridge at Exeter Chief’s Rugby Grounds and the lightning protection system (“LPS”) results in relation to the bridge. He was concerned about public safety. Devon CC refused to give this information relying on section 14(1) FOIA. Devon CC stated that the request was vexatious because of Mr Dransfield’s previous health and safety and LPS–related requests. Mr Dransfield appealed to the IC, who agreed with Devon CC that Mr Dransfield’s request was vexatious. Mr Dransfield appealed to the First-tier Tribunal (“FTT”).

The FTT noted that there had been a history of prior FOIA requests and “difficult encounters between the parties”. The IC particularly relied on this history in characterising Mr Dransfield’s request as vexatious. The prior requests were in a summary accepted by the FTT as follows:

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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.

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From the period 1 December 2005 to 11 March 2007, there were three 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.

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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 6 FOIA requests on the same subject.

On some occasions the tone and language of the requests had been extreme and on other occasions Mr Dransfield had been abusive of Devon CC officials. The prior correspondence was not available. He had also sent many emails until he was prohibited by Devon CC from using email.

The FTT did not consider that the request before them was vexatious. On its face it was simple and entirely benign. The FTT considered that the reasons for which it was refused had nothing to do with this request, but with the prior dealings between the parties. Regard had to be had to the context and history but here, unlike the usual case, there was no single underlying grievance. In such a case, there was a risk of “crossing the line to treating the requester as vexatious. That line was, in our view, crossed in the present case.”(FTT, Dransfield, Judgment, para. 36). The FTT did not consider that the current request was a continuation of the previous requests:

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. (FTT, Dransfield, Judgment, para. 38)

The FTT held that the authority was bound to consider all the circumstances but, to avoid concluding that a request was vexatious because of the requester, it had to find that the current request was closely related to those in the past (FTT, Dransfield, Judgment, para. 40).

The FTT recognised that the language and tone of previous communications had gone beyond “what might be characterised as a reasonable level of frustration”, He had made allegations of fraud, malfeasance and criminal behaviour. These were matters for the police and not for continued requests ((FTT, Dransfield, Judgment, para.42).

The IC appealed to the UT. The UT reversed the decision of the FTT. An appeal lies on a point of law from the decision of the UT to this court.

The UT took the view that the FTT had misapplied the proper legal test under section 14(1) FOIA, and that its decision fell to be set aside. It remade the decision and took the view that the request was indeed vexatious.

The UT held that the purpose of section 14 was “to protect the resources (in the broadest sense of that word) of the authority from being squandered on disproportionate use of FOIA” (UT, Dransfield, Judgment, para. 10). The UT set out material from the guidance which the IC was obliged by section 47(2) FOIA to give (UT, Dransfield, Judgment, para. 13). The UT accepted that the test under section 14(1) was whether the request, not the requester, was vexatious (UT, Dransfield, Judgment, para. 19).

The UT considered that to determine whether a request was vexatious it was necessary to look at all the circumstances. A request was not vexatious simply because it was annoying and irritating. It had also to be without justification:

What is a “vexatious” request under section 14 of FOIA?

24.

“Vexatious” is a protean word, i.e. one that takes its meaning and flavour from its context. I therefore accept Mr Cross’s primary submission that the term in section 14 carries its ordinary, natural meaning within the particular statutory context of FOIA. It follows, I believe, that the ordinary dictionary definition of “vexatious” as “causing, tending or disposed to cause … annoyance, irritation, dissatisfaction, or disappointment” can only take us so far. I accept as a starting point that, depending on the circumstances, a request which is annoying or irritating to the recipient may well be vexatious – but it all depends on those circumstances.

25.

In particular, we must also not forget that one of the main purposes of FOIA is to provide citizens with a (qualified) right to access to official information and thus a means of holding public authorities to account. It may be both annoying and irritating (as well as both dissatisfying and disappointing) for politicians and public officials to have to face FOIA requests designed to expose possible or actual wrongdoing. However, that cannot mean that such requests, properly considered in the light of all the circumstances and the legislative intention, are necessarily to be regarded as vexatious….

26.

With that qualification in mind, I consider that the IC’s Guidance that “the key question is whether the request is likely to cause distress, disruption or irritation, without any proper or justified cause” provides a useful starting point, so long as the emphasis is on the issue of justification (or not). The fact that the OED definition omits any reference to “distress” or “disruption” in quite those terms is no bar. This is because the inclusion of these terms in the IC’s Guidance is justified by extension, given that the purpose of section 14 is to protect public authorities and their employees in their everyday business – thus consideration of the effect of a request on them is entirely justified, adopting a purposive approach. Hence a single abusive and offensive request may well cause distress, and so be vexatious within section 14, applying the ordinary meaning of the word. A torrent of individually benign requests may well cause disruption, so one further such request may also be vexatious in the FOIA sense. However, for the reason noted in the previous paragraph, it may be more difficult to construe a request which merely causes irritation, without more, as vexatious under section 14. Thus an important aspect of the balancing exercise may involve consideration of whether or not there is an adequate or proper justification for the request. Similarly, the parallel test under the Environmental Information Regulations 2004 (SI 2004/3391) is (in part at least) whether the request is “manifestly unreasonable”. For the reasons explained in my decision in Craven, for the most part I see no material difference between the terms “vexatious” and “manifestly unreasonable”.

27.

The common theme underpinning section 14(1), at least insofar as it applies on the basis of a past course of dealings between the public authority and a particular requester, has been identified by Judge Jacobs as being a lack of proportionality (in his refusal of permission to appeal in Wise v Information Commissioner GIA/1871/2011; see paragraph 17 above). This issue was also identified by the recent FTT in Lee v Information Commissionerand King’s College Cambridge at [73] as a relevant consideration. I note that the FTT in Lee referred to the use of the term “vexatious” in legal parlance, citing some of the many uses of that adjective in legislation controlling access to proceedings or rights (see especially at [65]-[68]). For myself I would not go as far as that FTT did in terms of its methodology, not least as it seems to me the critical issue is the meaning to be attached to “vexatious” in the particular statutory context of FOIA, rather than in legislation generally. It does not seem right to me, in the context of a statute designed to ensure greater public access to official information and to increase accountability and transparency, to place too great an emphasis on the way in which Parliament may use the term in other legislation. That said, for the reasons above I agree with the overall conclusion that the FTT in Lee reached, namely that “vexatious” connotes “manifestly unjustified, inappropriate or improper use of a formal procedure” (at [69]).

The UT considered that the decision-maker would find it useful to consider four particular factors, which were amplified in later paragraphs of the judgment:

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.

In paragraphs 29 to 39 the UT considered its four broad themes in detail. Under the first theme, the burden, the UT explained how the number, breadth, pattern and behaviour of previous requests might be a telling factor. Under the second broad theme, the UT took the view that motive might be a significant factor in determining vexatiousness. The UT expressed the view that “the proper application of section 14 cannot side-step the question of the underlying rationale or justification for the request”, and that a request might start as reasonable but lead to further requests which “become increasingly distant from the requester’s starting point”, which UT Judge Edwards had called “vexatiousness by drift” in his decision in Wise v Information Commissioner and Dorset County Council GIA/1871/2011 (see UT, Dransfield, Judgment, para. 34). The third broad theme was the value of the request, which the UT considered might be bound up to some degree with the requester’s motive. The fourth broad theme was obsessive conduct that harasses or distresses staff or uses intemperate language, or which makes unsubstantiated allegations or contains abuse. This might be evidence of vexatiousness.

In Mr Dransfield’s case, The UT considered that the FTT “boxed itself in” by stating that there had to be more than broadly the same subject matter and that the current request had to be infected by the history of the previous requests (UT, Dransfield, Judgment, para. 60). By doing so, the FTT had wrongly fettered its discretion. In any event, it failed to explain why the request was not sufficiently linked to the previous course of dealing. Most of the previous requests had related to health and safety and LPS issues.

The UT had no hesitation in concluding that the request was vexatious. The volume of requests and correspondence placed a considerable burden on the authority (UT, Dransfield, Judgment, para 67). There was also a likelihood of a future barrage of correspondence (UT, Dransfield, Judgment, para. 70).

As to motive, the UT considered that the evidence showed that Mr Dransfield regarded his purpose was one of uncovering important health and safety issues but in the view of the UT this was outweighed by other considerations (UT, Dransfield, Judgment, para. 71). The UT concluded that Mr Dransfield’s request placed a disproportionate burden on the Devon CC. The UT considered that Mr Dransfield’s behaviour “shows all the hallmarks…of an obsessive and unreasonable campaign lacking in any serious purpose” (UT, Dransfield, Judgment, para. 72). Furthermore although the tone of the request was reasonable, his previous requests had been “belligerent and unreasonable” which experience suggested might be repeated in future (UT, Dransfield, Judgment, para. 73). For these reasons, the UT concluded that Mr Dransfield’s request dated 29 May 2010 was vexatious.

Mrs Craven’s land in North Yorkshire where she lived had, in her late husband’s life-time, been subject to a compulsory wayleave relating to a new power line on her land. Her husband died in 2001. All her requests related to broadly the same subject matter (high voltage overhead cables). She wanted to find out about British laws governing the installation of overhead lines. She lodged three requests, which the UT described as distinct but overlapping.

Her first request was in July 2005. It sought about 20 items of information of a wide-ranging kind including information which the department held on wayleaves. On 5 November 2006, she lodged a further request for information, including information as relating to specific primary and secondary legislation. By way of example, she asked “Does the Department hold any recorded information on Acts of Parliament special to electricity additional to those on the list provided by me?” and, if so, is the Department prepared to disclose the titles of any such Acts of Parliament?”. In the same request she also sought information relating to the engineering directorate and the department itself. In May 2010 she made further requests. On this occasion her requests were more focused due to her discovery of some of the information from public sources.

The DECC treated her requests of November 2006 and May 2010 as vexatious and rejected them under section 14(1) FOIA. Mrs Craven applied to the IC. The IC considered that some of her 2010 requests should have come under the EIR. Even so, the IC concluded that all Mrs Craven’s request had been correctly refused, due either to vexatiousness (the test in section 14(1) FOIA) or manifest unreasonableness (the test in regulation 12(4)(b) EIR). In Mrs Craven’s case the FTT, by a majority, dismissed Mrs Craven’s appeal. She appealed to the UT.

The UT identified the key issue in her appeal as whether the FTT erred in law. If it did, then the UT would have to allow the appeal. It considered the two-tests-one-meaning issue, and whether the FTT gave adequate reasons for its decision (“the adequacy of reasons issue”).

On the two-tests-one-meaning issue, the UT accepted the argument of the IC (Mr Cross) and the DECC (Mr James Cornwell) that there was no material difference between “vexatious” and “manifestly unreasonable”. It rejected Mrs Craven’s argument that the test established in Bhamjee v Forsdick [2014] 1 WLR 1091 for vexatious litigants applied to section 14 FOIA (UT, Craven, Judgment, para. 22). The decision making processes under FOIA and EIR were conceptually different but the UT found it difficult to think of a case where the outcome would be different (UT, Craven, Judgment, para. 22). Different tests might create real practical difficulties where it was not clear whether the request should be dealt with under FOIA or EIR.

The costs of compliance issue arose in the course of argument before the UT. Section 12 FOIA provides a specific exemption from complying with a request where the costs of doing so would exceed a specified amount (in the case of central government departments, this amount is £600). No equivalent provision is contained in the EIR, although regulation 8 EIR confers the power to charge a reasonable fee for complying with requests. The UT held that the costs of complying with “an extremely burdensome request” could be the basis for concluding that a request to which the EIR applied, or might apply, was manifestly unreasonable under that regime, though the exception could not be maintained if the authority considered that the public interest in disclosure outweighed this exception (regulation 12(1)(b) EIR) (UT, Judgment, Craven, para. 25). The UT also considered whether a request could be rejected under FOIA in similar circumstances. It concluded that it could. It rejected Mr Cross’s argument that if the costs exceeded the limits in section 12, authorities could not rely only on section 14 FOIA (UT, Judgment, Craven, para.26). The UT held that a request under FOIA could in an appropriate case be rejected on the sole ground that the cost of compliance was excessive because the powers conferred by sections 12 and 14 were discretionary, and FOIA did not say that section 14 could only be used if section 12 was not available. The costs of compliance could be taken into account under both regimes and the decision maker did not need to establish definitely whether the request was within FOIA or the EIR (UT, Craven, Judgment, paras. 28 to 30).

On the adequacy of reasons issue, the UT held that the FTT had failed to give proper reasons or findings. It therefore fell to the UT to remake the decision. It did so applying the guidance it had given in Dransfield. The UT concluded that the request was vexatious. The UT took into account that Mrs Craven had not made many previous requests and had used reasonable language. However these factors were outweighed by factors pointing to vexatiousness. This included “the sheer scale” of her requests and the costs of complying with them. Her requests would have involved many days of official time. Moreover the costs of compliance exceeded the limits in section 12 FOIA. Therefore the public interest was in favour of rejecting her requests.

I shall next summarise the submissions on these appeals.

The IC has a statutory obligation under section 47(2) to issue guidance, which he has done. The guidance covers such matters as dealing with vexatious requests. Various government departments have also issued guidance, including the Department for Constitutional Affairs (now the Ministry of Justice) and DEFRA. As this guidance does not have special status in matters of interpretation, it is not necessary for me to cite it in my conclusions. For my own part, while I welcome the issue of such advice I do not find it provided assistance in resolving the issues on these appeals. I have not in general included any references to it in my summary of counsel’s submissions.

Mr David O’Mahony appears for Mr Dransfield through the good offices of the Bar Pro Bono Unit. The Court is indebted to both for their assistance.

Mr O’Mahony seeks to uphold the decision of the FTT and he contends that the UT erred in setting it aside. It is common ground that section 14(1) FOIA applies to the request and not the requester. It is common ground that Mr Dransfield’s current request, viewed in isolation, was not vexatious and may have had a serious purpose. He submits in effect that that should have been an end of it, and that the request should not have been held to be vexatious.

Mr O’Mahony accepts that the background and context of a request, and also the motive for, a request may be relevant. He submits that the question is the extent to which they are relevant. The decision maker has to exercise his judgment as to whether a particular request is, on the facts, vexatious. Mr O’Mahony submits that the decision maker should satisfy himself that the previous dealings taint the request and make the request vexatious. This, he submits, was the approach of the FTT in this case (see FTT, Dransfield, Judgment, paras.18, 36, 38, 39 and 40). The FTT correctly asked whether the facts relied upon infected the request. The correct test is that set out in paragraph 40 of the FTT’s decision (above, para. 13). There was no error of law by the FTT. He submits that there was no link between the past dealings and the current request.

Mr O’Mahony sought to submit that the UT’s assessment of the earlier correspondence was wrong. The correspondence between Mr Dransfield and Devon CC was not available before the FTT and all the FTT had was a summary, which Ms Kamm had included in her skeleton argument on this appeal. These submissions are, however, beyond the terms of the permission to appeal given by Briggs LJ, and accordingly I will say no more about them.

Mr Cross, for the Information Commissioner, emphasises the fact that the UT is a specialist tribunal appointed by Parliament to make decisions in this area. The UT has an important function of developing structured guidance on expressions central to the scheme to avoid inconsistent interpretations in the FTT: see per Lord Carnwath in R (Jones) v FTT [2013] 2 AC 48 at [41].

Mr Cross submits that the UT was right to define “vexatious” by applying its ordinary meaning in the context of FOIA. It is not simply a matter of finding the dictionary meaning. Moreover, on his submission, the mere fact the request vexes the authority or embarrasses it is not enough to make the request vexatious. Furthermore, on his submission, section 14 is about the misuse of rights. Requesters must use section 14 appropriately so that the overall objectives of FOIA can be furthered.

Mr Cross further submits that the UT were right to reject the FTT’s approach of seeking a link because section 14 requires the decision maker to consider all the relevant circumstances in their context, and to make a multifactorial decision, that is, a decision which is dependent on a number of factors. The decision maker cannot fetter his discretion and leave out relevant considerations. Mr Cross distinguishes three types of case based on the IC’s experience: (1) there is the rare type of case where, simply looking at the request itself, there is reason to think that it is vexatious. This occurs for instance where the request plainly contains racist abuse against an employee and that is unacceptable. (2) The more common case is where the request may appear benign on its face but not when viewed in the context of its history. In this type of case it is necessary to look at the history. There may be a clear intention to cause disruption to the authority, which would be a misuse of FOIA. The motive with which a request is made may, on his submission, be relevant. In this type of case, the authority has to ask whether there is objective justification for the request. (3) The third type of case involves the identity of the requester. The authority must be able to look at the identity of the requester. Otherwise there might be a misuse of FOIA. The request might have been made by one person who is not justified in making the complaint. The identity may, therefore, inform the motive. Therefore, disagreeing with Mr O’Mahony, Mr Cross does not accept that the decision maker may not look at the identity of the requester at all.

Mr Cross further submits that, even if there was no misdirection, the FTT did not give proper reasons as to why the link was not good enough. The FTT characterised Mr Dransfield as conducting a campaign.

In any event, submits Mr Cross, the FTT ignored relevant considerations. It found that Mr Dransfield had made serious allegations against Devon CC, but not taken these matters into account (FTT, Dransfield, Judgment, para. 42).

Accordingly, Mr Cross submits that the UT was correct and that the only issue then was whether the UT made any error of law in remaking its decision. As I have explained, that is outside the permission to appeal.

Ms Rachel Kamm, for Devon CC, opposes the appeal. She relies on paragraphs 23, 24 and 42 of the FTT’s decision, against which there is no permission to appeal. Mr Dransfield made an allegation of bad faith against Devon CC in his letter of 29 July 2010, in which he requested a review of Devon CC’s decision of 23 July 2010 that his request of 29 May 2010 was vexatious. Ms Kamm submits that it is not possible to draw the distinction which the FTT sought to draw. The FTT was trying to draw a line on the spectrum. The FTT jumped from the fact that the current request was not a continuation of previous requests to the conclusion that it cannot be vexatious. This was fallacious. In any event, in Mr Dransfield’s case, the request was clearly infected by the history of requests. Moreover the UT in fact found a link (para 70 of its judgment: above, para 22) and it was satisfied that that would lead to a future burden on the authority. It is not just a question of looking at the past but also forming a view of what the past holds for the future (see para 73 of its judgment, para 23 above).

Mrs Craven submits that the real basis for rejecting a request for information must be vexatiousness and that there is an absence of public interest. She urges caution in finding a request to be vexatious. It is, she submits, necessary to consider both sides. Both sides can be guilty of abuse of process, not just requesters. Officials may not want to release information for their own reasons.

Mrs Craven submits that her requests are just about the laws concerning overhead lines. She received some information. Her other requests were considered vexatious. She took us through the extensive Ministry of Justice guidance on the FOIA regime and sought to rely on the exemptions for legal professional privilege and commercial interests. However, there is no ground of appeal to raise these exemptions; they are not in any event available in her case.

Mrs Craven submits, on the basis of section of 14(2) FOIA, that the true test of vexatiousness in FOIA is repetition.

Mrs Craven submits that the meaning of vexatiousness in other statutory contexts is more relevant than its dictionary definition. She submits that there is an analogy between requests under FOIA and the power of the court under section 42 of the Senior Courts Act 1981, on an application by the Attorney General, to declare litigants vexatious so that they cannot start proceedings without the leave of the court. She submits that the IC might be entitled to request the Attorney General to apply for an order under this section. Section 42 is directed at preventing abuse of the process of the court, and the key question under section 42 is whether the individual can be denied a hearing before the court. Under section 42, the individual must have habitually made applications, and she submits that section 14 FOIA likewise applies where a person has habitually presented requests. She submits that the Court of Appeal should restrict the power of the IC to create its own vexatious “litigant” case law and that he should in appropriate cases make a formal and suitable section 42 application to the Attorney General.

Mrs Craven submits that the requirement that a request be “manifestly unreasonable” in regulation 12 EIR has nothing to do with vexatiousness. Each test has a very different origin. The test in section 14 cannot be imported into the EIR. Moreover, she submits that it was too late for the EIR to be introduced into her case by the IC. She denies that her request was either vexatious or manifestly unreasonable.

Mr Cross makes the general submission that, while the analogy with cases on vexatious litigants may be helpful in some respects, for example because it emphasises the need for proportionality, that jurisprudence should be kept separate. He further submits that reliance on the analogy may lead to requests being wrongly rejected on grounds associated with the requester’s identity. It does not result in a requester being placed on a list like a vexatious litigant. The IC considers that it would be wrong to treat a request as vexatious because of the identity of the requester, who might have a prior record of vexatious requests. There is no question of denial of access to a court here.

Mr Cross makes submissions on (1) whether section 12 or section 14(2) bears on section 14 and (2) the interpretation of regulation 12.

As to (1), Mr Cross submits that the mere fact that compliance with a request would not breach the financial limits in section 12 FOIA (set out in the Annex to this judgment) does not mean that section 14 FOIA cannot apply. Section 12 is separate from section 14. The authority can still take cost into account under section 14 in determining whether a request is vexatious.

Mr Cross submits that likewise section 14(2) is a separate, concurrent basis for rejecting a complaint. However section 14(2) does not cut down the matters which may be considered under section 14(1).

As to (2), Mr Cross supports the conclusion of the UT that it is very difficult or impossible to see how it can be easier for a request to pass under either regime, but not the other. Mr Cross submits that both are concerned with misuse of rights. Mr Cross submits that the motive for a request, or as it might be put, the justification for a request, is as relevant to the question whether a request is “manifestly unreasonable” as it is to the question whether a request is vexatious. On his submission, motive is not made legally irrelevant on either test. He goes on to argue that in a particular case it may be that the value of the information is such as to outweigh the fact that the requester is, or has in the past, abusive. Thus, he submits, motive goes to the question whether the request is manifestly unreasonable. He accepts that it may also or alternatively be a weighty factor when weighing up the public interest, which also has to be satisfied under regulation 12(1)(b) EIR. Mr Cross submits that all the circumstances of the request are relevant to the question whether it is manifestly unreasonable. That may in some circumstances include the identity of the requester.

Mr Cross took the court to the published guidance on section 14 FOIA and regulation 12 EIR. In the end, he accepted that none of it assisted. Mr Cross also referred us to a provision in The Aarhus Convention: an Implementation Guide, which Mr Cross submits may be taken into account in interpreting the Aarhus Convention. It must, therefore, also be relevant to the interpretation of regulation 12 (which is ultimately derived from that Convention). The Implementation Guide states that an extension of time for a reply to an authority’s reply to a request may be appropriate where the volume and complexity of the information sought justifies it, stating that the volume and complexity alone could not justify withholding information on the grounds that the request is “manifestly unreasonable”. The same point can be made on the basis of regulation 7 EIR (see the Annex to this judgment).

Mr James Cornwell, for the DECC, adopts the submissions of Mr Cross on both appeals. Mr Cornwell went on to make, economically and well, a number of broadly similar submissions, which I do not repeat without intending any discourtesy. Like Mr Cross, Mr Cornwell seeks to uphold the decision of the UT.

In answer to Mrs Craven’s submission that it was too late for regulation 12 to be introduced into her case at the stage of the IC’s review, Mr Cornwell points out that in DEFRA v Information Commissioner [2012] PTSR 1299 at [19] and [28] this court held that, even if the authority had not claimed to rely on any exception from its obligations to disclose at any earlier point in time, it could do so in the course of tribunal proceedings. It follows, he submits, that it must be lawful for the point to be raised by the IC at the stage of his review.

Mr Cornwell submits that in the present case Mrs Craven’s requests were clearly vexatious and burdensome. Some were indeterminate. Some were for particular documents. Those were significantly burdensome requests. The appellant had already been provided with some information. Vexatiousness and manifest unreasonableness depends on the facts.

As explained earlier, the appellants have only limited permission to appeal even though in responding to them the respondents have sought to put their arguments into a much broader context. The precise issues which we have to determine are:

The limited permission was confined to points of law. While it extended to the application, as well as the interpretation, of section 14(1) FOIA and regulation 12(4)(b) EIR, the question whether Mrs Craven’s request fell within either provision became a question of fact once the meaning of those provisions is established. As we are dismissing the appeal, it is not necessary for us to consider the application of meaning to the facts.

Beyond arguing that the term “vexatious” should not have its dictionary definition, and should have the same meaning as in section 42 of the Senior Courts Act 1981, Mrs Craven did not seek to argue that, if she was wrong on the two-tests-one-meaning issue, the approach of the UT was wrong. Nor did any of the parties take us through the reasoning of the UT in paragraphs 28 to 39 of its judgment. The question of the correctness or completeness of the “four broad issues or themes” identified by the UT has not directly been an issue on this appeal.

As I have said, the important point about Mr Dransfield’s request is that, taken on its own, it is a precise and politely-worded request and that there is nothing on the face of this request which could be termed “vexatious”. I agree with the instinctive approach of the FTT that there must be some limits on the ability to look at past dealings in this situation. Even if the requester has made vexatious requests in the past, there must always be the possibility that, on this occasion, the requester, like Matilda’s last request in Hilaire Belloc’s poem, may be making a request that needs to be heeded, and that the request is for information that ought to be disclosed to achieve the statutory objective. The requester is after all exercising an important statutory right.

Although there is no argument on this appeal as to the meaning of “vexatious” in general, it is clearly necessary to have some understanding as to what that word means in order to deal with the two submissions that were made on this appeal.

In its decision on this appeal, the UT, having started its detailed discussion of vexatiousness with the observation that it was a “protean” word, did not offer a definition. However, it expressed agreement at the end of para. 27 of its decision (para. 18 above) with the description provided by FTT in Lee, namely that “vexatious” connotes “manifestly unjustified, inappropriate or improper use of a formal procedure”.

In his submissions on Mrs Craven’s appeal, Mr Cross, drawing no doubt on the UT’s decision in Dransfield, used a number of concepts almost interchangeably, namely misuse of an information right, lack of justification for its exercise and motive for its exercise. In my judgment, these are all very different concepts. The concept of misuse of rights may refer to the European doctrine of abuse of rights, which invalidates an attempt to obtain an advantage from legislative provisions which is contrary to the aim of those provisions. If it is a reference to domestic law, no-one suggested to us that there is any similar, relevant doctrine in our domestic law, though obviously that a court might pragmatically find that a particular action was outside the true interpretation of legislation if it involved a misuse of its provisions. Mr Cross used the term “misuse” of rights to identify what might be a badge of vexatiousness on the particular facts of a case. I agree that it is a useful expression for that purpose but, as it lacks any precise definition, it cannot be a criterion for vexatiousness.

Mr Cross placed particular emphasis in his submissions on motive, which he saw as an alternative to justification. This is with respect not easy to follow. Lack of justification is an objective matter and in this context must refer to the question whether the request is within the terms of the rights conferred by FOIA or the EIR. That inquiry does not take us very far since it still has to be asked if the request is vexatious or manifestly unreasonable.

Motive is, perhaps confusingly, the reason for doing something. The reason for doing something may be bad (e.g. to cause hurt) while the thing itself (e.g. telling the truth) is good, but the law is not concerned with moral judgments in this area but with the question of entitlement to exercise a right which does not involve a moral judgment. What Parliament has enacted is that an authority may reject a vexatious request. In doing so, Parliament in my judgment has departed from the fundamental proposition of English law that the bad motive for exercising a right does not invalidate the exercise of the right (Bradford Corporation v Pickles [1895] AC 587). As Lord Halsbury LC succinctly put it in that well-known case about the owner of underground percolating water who wished to divert it when it might be used to provide water for the developing metropolis of Bradford: “If it was a lawful act, however in the motive might be, he had a right to do it.” If, however, the exercise of an information right under FOIA is “vexatious”, the authority may not be bound to act on it.

The UT in Dransfield discussed the relevance of motive at some length (UT, Dransfield, Judgment, paras. 34 to 37), but its discussion is mainly directed to the disproportionality of a request, with the exception of a finding at the end of para 37, that “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 my judgment, the UT was right not to attempt to provide any comprehensive or exhaustive definition. It would be better to allow the meaning of the phrase to be winnowed out in cases that arise. However, for my own part, in the context of FOIA, 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. 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. 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. I understood Mr Cross to accept that proposition, which of course promotes the aims of FOIA.

Because a rounded approach is required, in my view what I have termed the instinctive approach of the FTT must be wrong. It involved drawing bright lines between requests which spring from some common underlying grievance and those which, for example, relate to the same subject matter although there is no underlying grievance in common. This distinction is difficult to justify in logic and there is no statutory mandate for it. If the FTT were right, the decision maker may have to disregard other evidence which may throw light on whether a request is vexatious, just as the FTT left out of account the evidence in relation to prior requests that had led abuse and unsubstantiated allegations, of which the authority had first-hand knowledge because they had been directed to the authority’s staff (FTT, Dransfield, Judgment, para.42: para. 14 above). That evidence was clearly capable of throwing light on whether the current request directed to the same matter was not an inquiry into health and safety but (say) a campaign conducted to gain personal satisfaction out of the burdens it imposed on the authority.

In responding to any request, the authority has to exercise its judgment in good faith in the light of all the information available to it. It is always open to any requester who is dissatisfied to ask the IC to review its decision or to go to the tribunal.

Had it been necessary to reach a conclusion as to whether there was a link between the past dealings involving Mr Dransfield and Devon CC and the current request, I accept Miss Kamm’s submission that the UT found that such a link existed. It held that the belligerent and unreasonable tone of past correspondence would be continued in future dealings. This finding cannot be challenged in this court. It would clearly need strong evidence. But the UT was satisfied that it was entitled to make that finding and, as Ms Kamm submits, it demonstrates that, while there was no common underlying grievance, there was a link between Mr Dransfield’s past behaviour and the current request.

Before I leave this appeal I note that the UT held that the purpose of section 14 was “to protect the resources (in the broadest sense of that word) of the authority from being squandered on disproportionate use of FOIA” (UT, Dransfield, Judgment, para. 10). For my own part, I would wish to qualify that aim as one only to be realised if the high standard set by vexatiousness is satisfied. This is one of the respects in which the public interest and the individual rights conferred by FOIA have, as Lord Sumption indicated in Kennedy (para. 2 above), been carefully calibrated.

Accordingly I would dismiss Mr Dransfield’s appeal.

In order to decide whether there are two different tests or only one, the court has logically to consider first the meanings of “vexatious” and “manifestly unreasonable”.

I have already considered some aspects of “vexatious” above, but I have not yet dealt with Mrs Cravens’ submissions on this point.

There is much force in her submission that the other statutory uses of “vexatious” are likely to be more helpful than a dictionary definition. The word “vexatious” has been used in many modern statutes. Mrs Craven goes on to submit that the IC should use the procedure in section 42 of the Senior Courts Act 1981 and ask the Attorney General to make an application under that section. That cannot in terms work because an order under that section can only be made where a person has “habitually and persistently and without any reasonable ground” started “vexatious” civil proceedings or made “vexatious” applications in proceedings. Making requests under FOIA does not amount to starting or making an application in proceedings, which are legal proceedings.

But that does not dispose of Mrs Craven’s argument as it is also to be taken at the level that it shows that vexatiousness has an accepted legal meaning requiring the persistent making of vexatious requests, which is different from making “manifestly unreasonable” requests. On analysis, however, in my judgment, this point does not assist Mrs Craven for two reasons. First, it would seriously reduce the usefulness of section 14 if it could only be used if there were persistent requests in every case. Second, it would be difficult to keep a record of how many requests an individual might make as he might make requests to a number of different authorities. By contrast it is easier to find out if a person has begun legal proceedings even if he has done so in different courts because of the availability of court records for public inspection.

That leads to the question whether there is any difference between “vexatious” (section 14 FOIA) and “manifestly unreasonable” (regulation 12 (4)(b) EIR). The expression “manifestly unreasonable” has to be interpreted so as to give effect to the objectives of Directive 2003/4. It differs on its face from “vexatious” since it clearly imposes an objective test and appears alongside a requirement in regulation 12(1)(b) (see Annex to this judgment) for the authority to be satisfied as to the public interest in the disclosure. Leaving the word “manifestly” to one side for a moment, if I am right that the approach to section 14 should primarily be objective and should take as its starting point the approach that “vexatious” means without any reasonable foundation for thinking that the information sought would be of value to the requester or the public or any section of the public, then the difference between the two phrases is vanishingly small. It is difficult to see how they would differ in practice, though it cannot be discounted that EU jurisprudence may develop in the future in a different way to our own, and in addition that the public interest requirement in regulation 12(1) might lead to a different outcome from that under section 14. The word “manifestly”, which I put to one side, means of course the unreasonableness must be clearly shown. This saves the authority from having to make any detailed investigation into matters which it does not know or are not in the public domain. I doubt whether “manifestly” in practice adds much since before it uses section 14 FOIA or regulation 12, the authority would have to be confident that the request was vexatious or as the case may be manifestly unreasonable before it rejected it.

No-one has suggested that, on the particular facts of this case, section 14 FOIA could have led to a different answer to the test in regulation 12 EIR. In those circumstances, in my judgment, the UT was right to proceed on the basis that there was no distinction between the two tests in her case.

Mrs Craven was obviously concerned that the IC raised an objection which the DECC had not raised, namely that some of the information she sought was environmental information. He concluded that, if it was, regulation 12(4)(b) applied. She submits that the IC was not permitted to raise regulation 12 in her case.

Mr Cornwell supplied the answer to this submission. As explained in para. 56 above, this court held in in DEFRA v Information Commissioner [2012] PTSR 1299 at [19] and [28] that, even if the authority had not claimed to rely on any exception from its obligations to disclose at any earlier point in time, it could do so in the course of tribunal proceedings.

Section 14(2) FOIA serves a different purpose from section 14(1) FOIA. It deals with identical or substantially similar requests from the same person. The authority cannot reject these requests outright but may impose a reasonable interval between the two requests. As Mr Cross submits, this is a separate power and it does not restrict the meaning of section 14(1) FOIA. Section 14(2) does not mean that a repetition of requests must be shown under section 14(1).

I have summarised the UT’s decision on this issue in para. 29 above. I agree with its conclusions. In relation to the EIR, there is no provision which prevents the decision maker from taking the costs of compliance into account in considering whether the request was manifestly unreasonable, but he would have to balance those costs against the benefits of disclosure under regulation 12(1)(b) EIR.

I would add the point, not made by the UT, that the Aarhus Convention: an Implementation Guide referred to in para.54 above, states that “the volume and complexity alone could not justify withholding information on the grounds that the request is ‘manifestly unreasonable.’” There is no equivalent guidance in relation to section 14. This may mean that a higher hurdle has to be passed before a decision maker can conclude that a request should be rejected on the grounds of the costs of compliance under the EIR than under FOIA. That in turn may depend on the precise status of the Implementation Guide. These points were not fully argued and so I express no concluded opinion on them.

As the UT held, 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.

In addition I would agree with the UT’s observation that, if the authority can easily show that the limits in section 12 would be exceeded, it would be less complicated for it to rely on that section, rather than section 14.

The UT was not, therefore, in error in law when it remade the decision in Mrs Craven’s case taking into account the costs of compliance.

In the circumstances, I would dismiss Mrs Craven’s appeal.

For the reasons given above, I would dismiss these appeals.

I agree.

I also agree.