Kudeep Singh v The Information Commissioner

This is an appeal against the Commissioner’s decision notice IC-188871-T2H3 of 24 January 2023 which held that the Council of the University of Herefordshire (‘the University’) were entitled to rely on section 14(1) of the Freedom of Information Act 2000 (FOIA).

The Commissioner did not require the public authority to take any steps.

The appellant has submitted an undated, unheaded letter from a member of staff based in the Student Centre (in ‘tier 4 compliance’) at the University (‘the CAS/tier 4 letter’). The letter was labelled ‘Evidence 1 Public Authority refuses to amend their records’. It appears to be addressed to another student. It states:

“A [redacted],

Thank you for coming into the student centre today, just to confirm our conversation regarding your CAS:

Your school office have confirmed the modules you are repeating in 2017/18, and the following modules has been confirmed as a 30 credit

module:

Computer Science Development Exercise module (5COM1053) is a 30 credit module and not a 15 credit modules

You are now repeating 90 credits in total, this means you are will be liable for the full times fees of

£11,500.00. I have spoken [redacted] in the International Student Support team, regarding the increase of tuition fees. They have looked at your bank statements, and unfortunately you will not have enough money in your bank account to show for the increase

in fees and maintenance. We have decided not to amend your CAS, to show a fee increase, as we are worried you might receive a refusal on grounds of finances. As I explained to you earlier your CAS will remain with tuition fees due as £6975.00, but please be aware you will be invoiced for

the full amount of £11,500.00 for this academic year studies.

I have told [redacted] in ISS, that I have seen you and explained everything to you, and she will see you on Friday at your appointment.

Kind Regards

[redacted]

Tier 4 Compliance

…

Student Centre, Hutton Hub, University of Hertfordshire, College Lane, Hatfield …”

The appellant has an ongoing dispute with the University about its refusal to register him for the second year of his degree course in 2016 because they said that he had paid his fees late. The University informed the Home Office that the appellant had deferred his studies.

The appeal relates to part (f) of a multipart request made on 26 December 2021. That request, along with the University’s first response dated 27 January 2022 (in bold) was as follows:

“(a)

Provide the full Details of all (registered and unregistered) university offices in India, Pakistan, Bangladesh, Sri Lanka since 01 September 2013 - 16 December 2021.

Not applicable

(b)

Provide the full details of all (registered and unregistered) university education consultants/ agents in India since 01 September 201316 Dec 2021.

(c)

What is the revenue generated from Indian International students from 01 September 2013- 16 December 2021. Please provide a different response for each year.

We are unable to disclose the requested information for questions (b) and (c) as we consider this to be commercially sensitive by virtue of Part II (S43) of the Freedom of Information Act 2000 (FOIA). Disclosure of this information would potentially alert competitors to our recruitment and commission models and, as we rely on agents for recruitment, it could have a significant impact on our international recruitment, potentially resulting in disadvantageous financial implications for the University.

Please be advised that details of agents that work with multiple Universities are already available on our website.

(d)

Is University had or facing any complaints in India Supreme court, High courts and in India Ministry of Education ? If yes - please provide the information with reference number.

No

(e)

What is the total cost spend on advertising for the university in India since 01 September 2013 - 16 December 2021.

We consider this information to be commercially sensitive by virtue of Part II (S43) of the FOIA as it would alert competitors to how much promotion we do in the country.

(f)

Did university was allowed to write the different amount on the continuing international student/s CAS (which is different from the university invoice; real owing money towards the student) in order to approve the visa. Please provide the details from 01 September 2013- 16 December 2018. If yes- How many times university did the same as mentioned above.

We state the fees on the CAS for continuing students.”

On 4 February 2022 the appellant sought further clarification. That request for clarification, along with the University’s response of 23 February 2022 (in bold) was as follows:

“(1)

Please provide the link of university agents in India since 01 September 2013- 16 Dec 2021.

Information about local representatives in India can be found at

https://www.herts.ac.uk/international/ne...

(2)

The response is not relevant for point(f). It is already known that university state the fees on the CAS for continuing students but the request was made on the point that “whether university stated a different £ fee amount (consider less amount) on the student CAS , but invoiced student real fee (consider more amount) ONLY in order to make sufficient balance (without change) for 28 days as per the CAS stated for the student so that your sponsor student will get Tier4 visa.

The fee stated on the CAS for a student needing to renew their visa will be the fee the student is liable for in order to continue with their studies. If they are extending their visa in order to resit then the resit fee will be quoted. If they need to repeat, then fees for that academic year will be quoted. This will not be different to the fee on the invoice.

If you did same, was university allowed to do so and how many times university did the same?

See above response. N/A”

The appellant wrote again to the University on 8 July 2022 as follows:

“In relation to point (f), university is whether wrong or purposely made an attempt to mislead me and Public. Could you please correct it to avoid me to taking further actions against you as per the FOIA rules (here). I have found that university could write the different amount on international students CAS- contrary to the students actual fee invoice. Please inform me if you need an evidence to verify my statement.”

The tribunal does not have all the subsequent correspondence, but after a number of further written exchanges, the University informed the appellant on 29 July 2022 that they were refusing the request under section 14 FOIA because it was vexatious.

The appellant referred the matter to the Commissioner, who asked the University to conduct an internal review. On 30 September 2022 the University upheld their refusal on internal review.

In a decision notice dated 24 January 2023 the Commissioner decided that the University was entitled to rely on section 14 FOIA.

In essence, the grounds of appeal are:

The Commissioner opposes the appeal and stands by his DN. The Commissioner submits that in all the circumstances of this case the request was vexatious further to the binding case law set out by the Court of Appeal in Dransfield v Information Commissioner & Devon County Council [2015] EWCA Civ 454 (and which did not depart from the Upper Tribunal findings in Information Commissioner v Dransfield [2012] UKUT 440 (AAC)).  

If, contrary to the Commissioner’s position, the Tribunal concludes that the request is not vexatious under s. 14(1) FOIA, the Commissioner would invite the Tribunal to order steps obliging the public authority to issue a fresh response to the request not relying upon s. 14(1) FOIA

We have taken account of the emails of the appellant where relevant to the issues we have to determine.

After the tribunal’s deliberations but before this decision was written, the appellant sent a further email with an order from the Master in the proceedings. The Judge considered the email and decided that it would not have had an influence on the decision, because the tribunal accepted that the subject matter of this request did not relate directly to the dispute in 2016 concerning to the actions taken by the University in response to the late payment of fees by the appellant.

The issue for the tribunal to determine is whether or not the request is vexatious within section 14 FOIA.

Guidance on applying section 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:

“In my judgment the Upper Tribunal 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...”

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. We had before us and took account of, where relevant, the following additional documents filed by the appellant (some entitled by the appellant):

We make the following findings of fact based on the evidence before us on the balance of probabilities.

The following timeline was provided by the University at page D86-D88. We accept that this accurately reflects the course of dealings between the appellant and the University up to December 2022. We have added the request and responses under consideration in this appeal and these are set out in bold.

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.

The dispute between Mr. Singh and the University that began in 2016 was live and ongoing at the date of the request. It continued to be ongoing thereafter. We have taken account of the context and the timing of the current request, and we note the multiple other FOIA requests, complaints to the University and to the OIA. In the absence of any other explanation for why the original request was made in December 2021, we find that the likely motive for making the request was not a genuine interest in receiving the requested information, but to annoy, irritate or attempt to damage the reputation of the University. We find that the reason why Mr. Singh wanted to do this was because of his ongoing dispute with the University. This is a case in which Mr. Singh’s actions were improperly motivated. We conclude that Mr. Singh is a requester, adopting the wording from Dransfield, who has “pursue[d] his rights against an authority out of vengeance for some other decision of its”.

The tribunal does not know when or how the appellant obtained the CAS/tier 4 letter. It is likely that the appellant had the letter when he made the request in December 2021 and we find that he did on the balance of probabilities. He certainly had the letter when he asked the University to ‘correct its response’ in July 2022. Given that the appellant already had a copy of that letter, it is difficult to see what genuine motive there can have been for the request other than a fishing expedition to attempt to identify any other similar incidents.

This position about the appellant’s motive is supported, in our view, by the fact that Mr. Singh has subsequently pursued these allegations via a whistleblowing complaint. He has continued to pursue these allegations despite the fact that the Vice-Chancellor has respondedformallytohis ‘whistleblowerdisclosures’statingthattheyareunsubstantiated. We draw two inferences from that. First, that Mr. Singh did not need a response to his current request in order to pursue a complaint about this issue. Second, that Mr. Singh’s motive is not to cast a light on suspected wrongdoing. He has raised the matter and had it dealt with through the appropriate channels, but continues to pursue the issue.

We find that Mr. Singh’s actions were improperly motivated. We conclude that Mr. Singh is a requester pursing his rights against an authority in retaliation for some other decision – namely its decision in 2016 taken as a result of the late payment of fees.

Although the appeal relates only to this request, when assessing the burden on the ICO 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 ICO in assessing whether the request is properly to be described as vexatious. Although this does take account of the previous actions of the individual requestor, this is in accordance with the approach of higher authorities, and therefore the approach that this tribunal should take.

Mr. Singh argues that it is not appropriate to take account of the course of dealings arising out of his 2016 dispute with the University, because it relates to a different matter than the current request.

We accept that the subject matter of this request does not relate directly to the dispute in 2016 relating to the actions taken by the University in response to the late payment of fees by Mr. Singh.

Given our conclusions above that the request was motivated by the 2016 dispute, we find that it is appropriate to view the burden of this request not in isolation but in the context of the entire course of dealings with the appellant.

Looking at the position up to the date of the request, it is clear that the course of dealings was placing an extremely significant burden on the University. At that point, in the light of the frequency and nature of the interactions with the appellant, it would have been reasonable for the university to anticipate a significant future burden in the light of the letter before action and the appellant's past tendency to challenge decisions that went against him.

Further, even viewed in isolation, this request would place a significant burden on the University. We accept that the request in essence asks the University to identify whether there were any anomalies between 1 September 2013 and 16 December 2018 in the way the University followed the relevant process. Given the number of CAS letters issued per year, we accept that this exercise would impose a significant burden on the University as the University would be required to sift through a substantial volume of information to determine, firstly, whether any such anomalies exist and secondly, to isolate and extract the relevant details.

The appellant submits that the burden of complying is small, because he has simply asked the University ‘(with evidence) to change their records and response for the Public especially students’. The tribunal takes this to be a reference to the email of 8 July 2022 which states as follows:

“In relation to point (f), university is whether wrong or purposely made an attempt to mislead me and Public. Could you please correct it to avoid me to taking further actions against you as per the FOIA rules (here). I have found that university could write the different amount on international students CAS- contrary to the students actual fee invoice. Please inform me if you need an evidence to verify my statement.”

The email of 8 July 2022 is not a FOIA request and is not the FOIA request under consideration in this appeal. The burden we are considering is not the burden of the University correcting its previous response by acknowledging the CAS/tier 4 letter. We are considering the burden of complying with the request of 26 December 2021 which asked:

“(f)

Did university was allowed to write the different amount on the continuing international student/s CAS (which is different from the university invoice; real owing money towards the student) in order to approve the visa. Please provide the details from 01 September 2013- 16 December 2018. If yes- How many times university did the same as mentioned above.”

As set out above, we accept that complying with this request would involve the University sifting through a substantial volume of information to determine, firstly, whether any such anomalies exist and secondly, to isolate and extract the relevant details.

There is no evidence of harassment or distress in this case.

We find that there was a more appropriate process for dealing with any concerns that Mr. Singh had arising out of the CAS/tier 4 letter that had come into his possession. The whistleblowing process was followed by Mr. Singh following his request. He was able to make use of this process without having received a response to his FOIA request.

We accept that there is value in transparency, particularly of situations where a public body appears not to have followed the normal processes. However, given that Mr. Singh already had the CAS/tier 4 letter, and there is no evidence of any other incidents, we find that the FOIA request does not serve a useful purpose, other than as a general fishing expedition.

Overall, we conclude that there 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.

The tribunal takes a holistic approach and the request must reach the high hurdle of vexatiousness. 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.

We have taken a holistic and broad approach and have decided that it is appropriate to look at the request in the light of the past course of dealings between the appellant and the University. We have considered the burden on the University of the request in isolation and in the light of the course of dealings. We have considered the value and purpose of this request. We have looked at the appellant’s motive. Looked at as a whole, our conclusion is that the burden on the University was disproportionate to the purpose or value of the request. 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 section 14 does apply and the appeal is dismissed.