Stephen John Duff v The Information commissioner

The appeal relates to the following two requests, both made on 20 January 2021:

The DVLA responded on 3 February 2021. They refused to comply with the requests on the basis of s 14(1) and 14(2). Mr. Duff requested an internal review but the DVLA did not carry one out.

Mr. Duff referred the matter to the Commissioner on 20 May 2021.

During the Commissioner’s investigation the DVLA withdrew its reliance on s 14(2).

In a decision notice dated 26 November 2021 the Commissioner decided that the DVLA was entitled to rely on s 14 FOIA.

The Commissioner was of the view that the requests, when set in the context of the long running dispute, were vexatious. Mr Duff started out with legitimate concerns about both the principle of the DVLA’s policy and its practical implications. However, the latest requests do not appear to be seeking information in recorded form so much as “proving” that Mr Duff has been correct all along. The public interest in this matter has dwindled and it is now largely a private grievance of little interest to anyone else.

The Commissioner noted that the requests were submitted after a relatively quiet period of four years. However, the Commissioner stated that she could not ignore the fact that both the current requests and the correspondence from 2013 to 2015 have a common thread. Namely that Mr Duff considers the requirements of ATAs to be incompatible with his business model and it is therefore unreasonable (in his view) for the DVLA to require him to join one – unless the existing ATAs make substantial alterations to allow him to join.

It is Mr Duff’s right to challenge the DVLA if he believes that it has acted unlawfully – and he did so in 2015. Mr Duff also has the right to challenge the individual ATAs if he believes that membership has unreasonably been denied to him. However, on either account, the route of challenge does not flow through the FOIA.

Furthermore, the Commissioner noted that the High Court agreed that the DVLA’s position was both lawful and rational. The High Court judgement also noted that there might need to be some adaptation of the ATA’s rules in order to allow Mr Duff to join – but noted that that did not amount to an entitlement for Mr Duff to rewrite their rules to suit himself.

The Commissioner observed that there appeared to be a standoff with Mr Duff refusing to joining an ATA until they have made sufficient changes to their Codes of Practice and appeals procedures to accommodate his business model. The ATAs are equally adamant that they will not admit him as a member until he has made sufficient changes to his model to meet their Codes of Practice and appeals procedures. That is essentially a private dispute about membership.

The DVLA is not a part of those proceedings – except inasmuch as they will not supply registered keeper data to Mr Duff until he joins an ATA. However, Mr Duff appears to be targeting the DVLA in a bid to drag it into his dispute with the ATAs and using FOIA as a tool to do so. The Commissioner concluded that this was an abuse of the FOIA process.

The Commissioner concluded that the evidence provided by the DVLA demonstrates that responding to these requests is unlikely to resolve matters and will likely lead to yet more correspondence. The amount of correspondence Mr Duff has submitted since the requests were made would indicate that he will not be satisfied until either the DVLA or the ATAs have accepted his point of view.

The Commissioner was not persuaded that some elements of the requests were genuinely seeking recorded information – rather, they appeared to be asking the DVLA to offer its opinion.

The Commissioner was therefore satisfied that the requests were vexatious and that the DVLA was entitled to rely on section 14(1) FOIA to refuse them.

The grounds of appeal are wide-ranging and detailed. The tribunal’s understanding of the grounds, taking into account Mr. Duff’s reply, is that Mr. Duff argues, in essence:

It is not the Commissioner’s or the tribunal’s role to review the DVLA’s policies. The issue of whether or not the DVLA’s policy is adequate or accurate in law is not a matter over which the tribunal has jurisdiction. Further the matter has been subject to judicial review which found the policy to be lawful and rational.

The Commissioner submits that Mr Duff’s grounds do not identify any error of law in the decision notice, nor do they identify any incorrect exercise of the Commissioner’s discretion. Indeed, the Commissioner is unable to identify any specific point advanced by Mr Duff which goes to substantively challenge the conclusion reached in that decision notice.

Mr. Duff’s arguments were before the Commissioner at the time he made his original decision. None of these arguments are sufficient to alter his findings. The decision notice correctly addresses the issues which were present at the time of the original request. In the Commissioner’s submission, Mr Duff has advanced no argument of substance which challenges his finding: accordingly, the appeal should be dismissed.

Mr. Duff has submitted a detailed reply. He highlights the paragraphs in the grounds of appeal in which he sets out the way in which the Commissioner should have exercised his discretion differently. He also reiterates or illustrates many of his points in support of his appeal. The tribunal has taken account of all the matters set out in the reply where relevant.

The issue for the tribunal to determine is whether or not the requests are vexatious within s 14 FOIA.

Guidance on applying s 14 is given in the decisions of the Upper Tribunal and the Court of Appeal in Dransfield ([2012] UKUT 440 (AAC) and [2015] EWCA Civ 454). The tribunal has adapted the following summary of the principles in Dransfield from the judgment of the Upper Tribunal in CP v Information Commissioner [2016] UKUT 427 (AAC):

The Upper Tribunal held that the purpose of section 14 must be to protect the resources of the public authority from being squandered on disproportionate use of FOIA (para 10). That formulation was approved by the Court of Appeal subject to the qualification that this was an aim which could only be realised if ‘the high standard set by vexatiousness is satisfied’ (para 72 of the CA judgment).

The test under section 14 is whether the request is vexatious not whether the requester is vexatious (para 19). The term ‘vexatious’ in section 14 should carry its ordinary, natural meaning within the particular statutory context of FOIA (para 24). As a starting point, a request which is annoying or irritating to the recipient may be vexatious but that is not a rule.

Annoying or irritating requests are not necessarily vexatious given that one of the main purposes of FOIA is to provide citizens with a qualified right of access to official documentation and thereby a means of holding public authorities to account (para 25). The Commissioner’s guidance that the key question is whether the request is likely to cause distress, disruption, or irritation without any proper or justified cause was a useful starting point as long as the emphasis was on the issue of justification (or not). An important part of the balancing exercise may involve consideration of whether or not there is an adequate or proper justification for the request (para 26).

Four broad issues or themes were identified by the Upper Tribunal as of relevance when deciding whether a request is vexatious. These were: (a) the burden (on the public authority and its staff); (b) the motive (of the requester); (c) the value or serious purpose (of the request); and (d) any harassment or distress (of and to staff). These considerations are not exhaustive and are not intended to create a formulaic check-list.

Guidance about the motive of the requester, the value or purpose of the request and harassment of or distress to staff is set out in paragraphs 34-39 of the Upper Tribunal’s decision.

As to burden, 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 the request is properly to be described as vexatious. In particular, the number, breadth, pattern, and duration of previous requests may be a telling factor [para 29]. Thus, 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. A requester who consistently submits multiple FOIA requests or associated correspondence within days of each other or who relentlessly bombards the public authority with email traffic is more likely to be found to have made a vexatious request [para 32].

Ultimately the question was whether a request was a manifestly unjustified, inappropriate, or improper use of FOIA. Answering that question required a broad, holistic approach which emphasised the attributes of manifest unreasonableness, irresponsibility and, especially where there was a previous course of dealings, the lack of proportionality that typically characterises vexatious requests [paras 43 and 45].

In the Court of Appeal in Dransfield Arden LJ gave some additional guidance in paragraph 68:

Nothing in the above paragraph is inconsistent with the Upper Tribunal’s decision which similarly emphasised (a) the need to ensure a holistic approach was taken and (b) that the value of the request was an important but not the only factor.

The lack of a reasonable foundation to a request was only the starting point to an analysis which must consider all the relevant circumstances. Public interest cannot act as a ‘trump card’. Rather, the public interest in the subject matter of a request is a consideration that itself needs to be balanced against the resource implications of the request, and any other relevant factors, in a holistic determination of whether a request is vexatious.

The tribunal’s remit is governed by s.58 FOIA. This requires the tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved exercising discretion, whether he should have exercised it differently. The Tribunal may receive evidence that was not before the Commissioner, and may make different findings of fact from the Commissioner.

We read and took account of an open bundle.

Although the four broad issues or themes identified by the Upper Tribunal in Dransfield are not exhaustive and are not intended to create a formulaic check-list, they are a helpful tool to structure our discussion. In doing so, we have taken a holistic approach and we bear in mind that we are considering whether or not the request was vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA.

Although the appeal relates only to these requests, when assessing the burden on the DVLA we must consider 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, in assessing whether the request is properly to be described as vexatious.

In the tribunal’s view it is legitimate to take into account the whole prior course of dealings between Mr. Duff and the DVLA, including the judicial review and related correspondence because it all arises fundamentally out of the same underlying issue which has not been resolved to Mr. Duff’s satisfaction.

In a letter to the ICO dated 29 October 2021 (p 181 of the bundle), Mr. Duff describes the background to and the purpose of his requests, which in our view illustrates clearly how the requests form part of the same course of dealings:

The burden on the DVLA of dealing with this course of correspondence is extremely significant. In Annex F to its letter of 16 November 2021 to the Commissioner (p 189), the DVLA summarises the correspondence in 2015 with Mr. Duff following the judicial review judgment.

As early as July 2015, the DVLA explained their interpretation of POFA (as summarised in the para 17 above) and Mr. Duff set out his position in response (as summarised in paras 16 and 18 above). There is a significant volume of correspondence between Mr. Duff and the DVLA in 2015 in which the DVLA either set out their position or refer to earlier correspondence setting out their position and to which Mr. Duff responds attempting to persuade the DVLA to accept his arguments. During that year Mr. Duff also made five FOIA requests, all related to the same underlying issue.

Between 2016-2020 there was a significant reduction in the volume of correspondence. In this period Mr. Duff made four complaints to the DVLA, via his MP and in direct approaches to the Data Protection Policy Team. The DVLA’s position remained that ‘incidents of vehicular trespass can lawfully be dealt with under the usual arrangement for the management of parking on private land, whether or not the land has been offered for parking’ (p 231).

Mr. Duff recommenced his correspondence with the DVLA on this issue in 2021 but the majority of that correspondence is after the date of the requests in issue.

In assessing burden, we do take account of the fact that there was a significant reduction in the level of correspondence between 2016 and 2020. In our view, it is legitimate to take account of the correspondence in 2015 despite the intervening quieter period. The matters being raised in 2015 are fundamentally the same as those being raised in these requests.

We find that the correspondence follows a repeating pattern. Mr. Duff sets out his position, the DVLA sets out its position and in response Mr. Duff explains why they are wrong. Mr. Duff is not satisfied with the responses provided and this usually leads to further requests or correspondence.

The correspondence illustrates Mr. Duff’s absolute conviction that his interpretation of the law is correct. He will not accept the DVLA’s position. He is convinced that they are wrong. Similarly the DVLA are convinced that their interpretation of the legal position is correct. In our judgment, based on the previous pattern of correspondence, Mr. Duff is highly unlikely to be satisfied with anything other than a concession by the DVLA that he has been right all along. The DVLA are highly unlikely to provide this. Without this, the requests and correspondence are highly likely, in our view, to continue.

No doubt the issues raised by Mr. Duff are legitimate, and his arguments as to the interpretation of the law may be persuasive. The DVLA has to shoulder some burden in responding to arguments of this nature, even if the DVLA ultimately takes the view that it does not agree with the Mr. Duff’s interpretation of the law. They took this view in 2015 and have communicated it clearly to Mr. Duff on multiple occasions.

In our view, the pattern and nature of the requests and correspondence, including in particular the pattern of follow up correspondence/requests and the persistent refusal to accept what seem to be reasonable explanations from the DVLA of its interpretation of the law, are taking up a significant and disproportionate amount of the DVLA’s time and therefore resources.

We find that the burden was likely to continue. Mr. Duff’s conduct before the request has shown that responses lead to follow up questions and more requests.

Taking all the above into account, we find that the requests, looked at in the context of the whole course of dealings, even taking into account the quieter period between 2016 and 2020, place an extremely significant burden on the DVLA. We have concluded that this burden is disproportionate, taking a holistic approach and in the light of our conclusions below.

We accept that the requests are not made simply to cause annoyance or disruption at the DVLA, or as part of any campaign of harassment.

There is no evidence of harassment or distress, although some of the correspondence is expressed in direct terms. We do not place any weight on this element.

We find that the fundamental purpose behind making the requests, and the course of dealings as a whole is that Mr. Duff wants the DVLA to accept that his interpretation or understanding of the law is correct, and that the DVLA’s interpretation or understanding of the law is wrong.

The primary basis for Mr. Duff wishing the DVLA to accept that he is correct, is in our view, that Mr. Duff takes the view, on the basis of his interpretation of the law, that he cannot join the accredited associations because he cannot comply with their codes of practice unless he amends his business model. If he cannot join the accredited association his business does not have access to the disclosure of vehicle keeper details from the DVLA.

In our view, the ICO identified the issue with clarity and precision in his letter at p 179 in which he anticipated that the DVLA would submit that: ‘underlying the requests is a question of legal interpretation which needs to be resolved by the courts and that using the FOIA is not an appropriate alternative to that process’.

Although Mr. Duff raises other wider concerns about the effect on motorists of other companies acting illegally, we find that this is not the underlying reason for his correspondence and requests.

We do accept that, if Mr. Duff’s interpretation of the law is right, the issue in general has a wider underlying public interest. If certain types of company simply cannot operate at all under the current regulatory regime, and if this leads to ‘parking charges’ for trespass being dressed up as contractual obligations that is not in the public interest. Further if the DVLA is releasing personal information to private companies who are acting illegally and there is accordingly no ‘reasonable cause’ under the Road Vehicles (Registration and Licensing) Regulations 2002/2742, that is also not in the public interest.

We do not accept that either Mr. Duff’s private purposes or the more general public interests identified about necessitate or justify the approach that he has taken, both in terms of the pattern of correspondence and the nature of that correspondence.

Further, having considered the wording of the requests in issue in this appeal, the tribunal finds that, as a whole, they are focussed specifically on trying to prove that Mr. Duff is right in his legal interpretation, rather than being a genuine request for recorded information.

Some parts, looked at alone, seem to be a request for recorded information. For example ‘Does DVLA release personal information to the British Parking Associations member Secure a Space?’ appears, in isolation, to be a simple request for information which might be held in recorded form.

Other parts of the request are more obviously attempts to persuade or to get across Mr. Duff’s point. For example:

The tribunal infers that the ‘evidence’, the ‘information’ and the ‘transcribed court judgments’ are those which have been sent to the DVLA from Mr. Duff. Mr. Duff knows the answer to these questions and is using them to make his point. This is not a proper use of FOIA.

Some parts of the request are also straightforward attempts to argue Mr. Duff’s point:

Again, this is not a proper use of FOIA. Mr. Duff accepts this, to some extent, in correspondence with the Commissioner on 29 October 2021 (p 181):

Taken as a whole we find that the request is not a genuine attempt to obtain the release of recorded information held by the DVLA. It is an inappropriate use of FOIA.

We do not accept that any underlying purpose or public interest necessitates or justifies the approach that Mr. Duff has taken, both in terms of the pattern of correspondence and the nature of that correspondence. Further we find that the requests are a manifestly inappropriate use of FOIA.

Looked at as a whole, our conclusion is that the burden on the DVLA is disproportionate to the purpose or value of the requests.

We have taken a holistic and broad approach and have looked at the requests in the light of the past course of dealings between Mr. Duff and the DVLA. We have considered the nature of the requests under consideration and the extent to which they are a proper use of FOIA. We have considered the burden on the DVLA and the value and purpose of this request and the value and purpose of the ongoing correspondence with the DVLA. We have looked at Mr. Duff’s motive and any harassment or distress that was likely to be caused by the request. Looking at all these factors we find that the request was vexatious in the sense of being a manifestly unjustified, inappropriate, or improper use of FOIA.

We conclude accordingly that the exemption in s 14 does apply and the appeal is dismissed.

The DVLA should note that this decision applies to the request not the requestor. Each request must be considered on its own merits and this should, in our view, include the carrying out of an internal review in accordance with the DVLA’s usual practice.