East West Railway Company Limited v The Information Commissioner & Anor

“Request 1: EWR is asked to provide the information constituting the ‘high-level environmental appraisal’ of the nine Route Alignment Options and the proposed northern approach.

Request 2: Insofar as it is not covered by request 1, EWR is asked to provide the information upon which it relies in concluding that it is ‘confident’ that the detailed design for the southern approach can mitigate any impacts on the Wimpole and Eversden Woods SAC. Such information is to include the impacts identified and the mitigations considered.

Request 3: EWR is asked to provide the information constituting the ‘operational analysis’ on which it relies in concluding that the northern approach proposed in appendix F of the Second Consultation Document would require the provision of a four- track railway in section NA2.

Request 4: EWR is asked to provide the information upon which it relies in concluding that the Shepreth Branch Royston Line could remain as a twin track railway from the new Hauxton Junction to the Shepreth Branch Junction.

Request 5: EWR is asked to provide the information on which it relies in concluding that no ‘significant alterations’ will be needed to the bridge where the Shepreth Branch Royston Line crosses under the A1301. Such information is to extend (insofar as it has been considered) to both a two and four-track approach to the Shepreth Branch Line and to the grade-separated junction that EWR considers may be needed at Shepreth Branch Junction.

Request 6: EWR is asked to say whether it has assessed the number of properties that would need to be demolished if the portion of the Shepreth Branch Royston Line from the Hauxton Junction to the Shepreth Branch Junction were to require works to increase the number of tracks. If it did undertake such an assessment, it is asked to disclose the information constituting that assessment.

Request 7: EWR is asked to provide any non-public information it holds (provided by Network Rail or others), or any assessment it has itself undertaken, which leads to the conclusion that there may be demand by 2043/2044 for around 24 freight trains per day on the line between Bedford and Cambridge. Such information is to include any quantification of the current freight use of the Shepreth Branch Royston Line and the West Anglia Main Line.

Request 8: EWR is asked to provide any report or other analyses which it holds which caused it to conclude that embankments and viaducts will be required in some form between Cambourne and Hauxton Junction on the southern approach. In doing so, EWR is not asked to provide information concerning the specifics of where and how embankments and viaducts will be used on each route alignment.

Request 9: EWR is asked to provide any engineering long section drawings which it has produced to assess the northern approach. If no such drawings exist, EWR is asked to provide (a) the length of viaduct; (b) length in cutting; and, (c) length on embankment of its comparator northern approach.

Request 10: Insofar as EWR has already undertaken this assessment, EWR is asked to provide a list of the roads which will be permanently severed or otherwise obstructed by each of the Route Alignment Options comprised in the southern approach (Cambourne through to Cambridge station).

Request 11: EWR is asked to provide the information constituting the updated ‘cost estimates’ provided by Network Rail and Atkins referred to in the Second Consultation Technical Report at 5.4.12, and, if different, the most recent cost estimates produced. Such estimates are not to be limited to the figures, and should (insofar as they exist) include the explanation of the estimates provided by Network Rail and Atkins.

Request 12: EWR is asked to provide the information upon which it relies in concluding that the impacts of the southern approach on the Mullard Radio Astronomy Observatory are ‘predicted to be capable of mitigation, subject to detailed design’. Such information is to include the impacts identified and the mitigations considered.”.

“Request 1 - EWR Co must extend the consultation period so that it closes on 9 September 2021 at the earliest.

Request 2 - EWR Co must provide details of how it proposes to analyse consultation responses to overcome the innate bias in question 1 and ensure that it gives sufficient weight to the comments of those who remain concerned by its failure to consult properly and openly on a northern approach and/or who disagree with its assessment that a southern approach is to be preferred.

Request 3 - EWR Co must provide information regarding: (i) the proposed freight capacity of the central section; (ii) how increased freight traffic has the potential to impact the current conclusion that there is no need to provide additional tracks between Hauxton and Shepreth Branch Junction (paragraph 11.1.2 of the Technical Report); (iii) possible mitigation measures in relation to both the noise and air pollution impacts of freight and their cost.

Request 4 - EWR Co must provide comparative journey times from Bletchley to Cambridge and for Bedford to Cambridge

Request 5 - EWR must provide a break down of forecast trips for journey pairs between relevant current and future stations.

Request 6 - EWR Co must provide updated car and coach comparisons for the Oxford to Cambridge comparator on page 42 of the Consultation Document (which is the same as that used in last year’s Preferred Route Option Report).

Request 7 - EWR Co must: (i) explain why its proposed southern approach makes sense in relation to passengers who wish to travel east of Cambridge to destinations beyond Ely and, in particular, towards Norwich;15 (ii) explain why it is an appropriate strategic assumption that east of Cambridge journeys will use the line to Newmarket, rather than the connections from Ely, given the significant investment that it appears will be required in the Newmarket line to allow such journeys; (iii) confirm that the line from Cambridge station to Cambridge North and beyond will need four-tracking if and when its services are extended further east or explain why the existing two track configuration will be sufficient in those circumstances.

Request 8 - EWR Co must: (i) provide details of existing freight usage of the Cambridge to Newmarket line; (ii) explain why it is a reasonable strategic assumption that the Cambridge to Newmarket line will be used for freight to go east, rather than the connections from Ely; (iii) provide cost estimates comparing the cost of the necessary upgrade of this line and the cost of the much shorter chord around Ely proposed by CA Ltd (which would enable freight to bypass Cambridge altogether).

Request 9 - EWR Co must provide, for the purpose of the current consultation, artists’ impressions of the main structures, and their proposed dimensions, so that residents can understand what is being proposed and its impact on the rural landscape and villages for the purposes of answering question 1 and identifying any mitigating measures they may wish to mention in answer to questions 39 to 41.

Request 10 - EWR Co must: (i) provide a revised comparison of the structures proposed in northern and southern approaches into Cambridge; (ii) explain why they have not used CBRR’s proposed trench solution in the current consultation comparisons.

Request 11 - EWR Co must, in particular: (i) confirm that the five properties that it has identified as likely to require demolition with a southern approach are all residential properties;22 (ii) explain how many of the 39 to 84 properties which it is said may be affected by a northern approach are “homes”; (iii) disclose the number of farms on the southern approach which are impacted, some of which will be rendered uneconomic and all of which will be more expensive to run, in order to provide a fair comparison with the commercial premises impacted on a northern approach; (iv) disclose how many people on the southern approach will lose part or most of their gardens.

Request 12 - EWR Co must disclose whether the Milton junction has been assumed to be grade-separated in each direction.

Request 13 - EWR Co must explain how they have assessed the impact of Thameslink services on the SBR line in respect of the Sponsor’s Requirements in: (i) paragraphs 5.3 and 5.4 of Appendix A of the Technical Report (to isolate the wider network from poor performance on EWR and to isolate EWR from disruption on the wider network); and (ii) paragraph 5.1 Appendix A of the Technical Report to allow for anticipated future growth.”.

“Question 1: EWR asserts that four-tracking is necessary if the line approaches Cambridge from the north. Can you provide detailed reasoning in why you think that this is necessary, in view of the following considerations?

Question 2: If the EWR were to approach Cambridge from the south and to serve Cambridge North station as suggested in The Technical Document Appendix F § 1.1.10, would that also require four- tracking north of Cambridge station? If not, why not?

Question 3: Does EWR agree that the trench railway system proposed by CBRR could be built for the Fen Crossing section of the northern approach? If so, are the statements in the consultation about embankments and viaducts being the only option for this section correct?

Question 4: Why does the analysis of the northern approach make no reference to the CBRR fen crossing proposal and conclude that the only possible solution is to go over roads and to build the railway high in the landscape when crossing the fens?

Question 5: Why did EWR not describe trench railways in the consultation?

Question 6: Will EWR commit look again at the trench railway solution as part of a full and fair consultation on a northern approach to Cambridge?”.

the three Requests should all have been dealt with under the EIR;

the Second Request and the Third Request engaged regulation 12(4)(b) of the EIR and the Public Interest Test favoured maintaining the exception; and

the First Request was not manifestly unreasonable for the purposes of regulation 12(4)(b) of the EIR and therefore the Appellant was not entitled to rely on that exception.

The Appellant relied on regulation 12(4)(b) of the EIR in refusing the Requests because it was protecting its resources from the manifestly disproportionate burden and cost that would be entailed by compliance with the Requests. In support of this, the Appellant referred to the limits set out pursuant to the Fees Regulations as a valuable indicator of what Parliament considers to be an appropriate threshold beyond which the burden entailed by a request becomes disproportionate.

The Commissioner erred by focussing excessively on the First Request in isolation in assessing burden. The Commissioner should have given appropriate weight to the history of communications between the Second Respondent and the Appellant, in accordance with the relevant principles in the Dransfield case (Footnote: ¹).

The Commissioner was wrong to suggest that the public interest in the Requested Information sought by the First Request undermined the Appellant’s reliance on regulation 12(4)(b) of the EIR; on the contrary, the existence of some public interest in information which is requested was insufficient to preclude reliance on that regulation.

It was clear from the Decision Notice that the Commissioner did not conclude that the First Request was manifestly unreasonable because he was not satisfied by the evidence provided by the Appellant in support of its position. The Commissioner applied a disproportionate evidential standard, particularly given that the purpose of the Appellant’s reliance on regulation 12(4)(b) of the EIR was to avoid an unjustified burden on the public purse. It was therefore inappropriate to require it to provide evidence over and above the ‘ample’ submissions it provided to the Commissioner as part of his investigations prior to the issue of the Decision Notice.

Even if the First Request were to be viewed in isolation, it was manifestly unreasonable, particularly due to the burden imposed with regard to the number and nature of the requests contained within it. The Appellant estimated that compliance with the First Request alone would require vastly more than 18 hours of work.

That burden was also unjustified having regard to the timing of the First Request: as the Appellant pointed out in its refusal notice, “documents in support of the on-going non-statutory consultation were published on 31 March 2021, but the [First] Request was not submitted until 10 May 2021” with the deadline for compliance with the First Request falling too late to make that Request useful for participation in that consultation.

Some of the information sought by the First Request (for example via parts 1 and 11 of that Request) were already in the public domain. Further, much of the information sought by the First Request was intended for future publication in due course, and at a stage when there will still be sufficient time for the public to participate in consultations and make representations about the relevant aspects of the Project. This diminished the public interest in compliance with the First Request at the time it was made.

The history of communications between the Appellant and the Second Respondent and “CAG” (which the Appellant defined as “Cambridge Approaches Group, an informal grouping of objectors who oppose the Project or parts thereof”), including the number of previous interactions, was relevant to show that the First Request was manifestly unreasonable. The Appellant estimated that, by the time of the First Request, it had already spent approximately 375 hours of staff time on those interactions. The Public Interest Test plainly favoured maintaining the exception in regulation 12(4)(b) of the EIR, so as to avoid imposing that burden that compliance with the First Request would impose.

At least to some extent, the pattern of communications and requests it had received from or on behalf of the Appellant and CAG was designed to cause disruption and annoyance, partly based on inference by reference to the timing and pattern of the Requests. As the Commissioner noted (in paragraph 53 of the Decision Notice) “the value of the requests was reduced substantially by the manner in which they were submitted”. Additionally, the Decision Notice recorded (at paragraph 43) that the Second Respondent had accepted that the Second Request was not designed to obtain information, but instead to outline opposition to the Project.

The Appellant had further, direct, evidence of an intention to cause annoyance and disruption. The Decision Notice had noted (at paragraph 35) (Footnote: ²) that an individual associated with the Appellant and CAG had “compiled a comprehensive list of various actions that all of us can do to make sure our voice is still heard at EWR. She likened her list of objectives to an annoying mosquito round the head of EWR”. The Commissioner had also noted that the making of information requests was listed as being one of those “annoying” actions. The Commissioner was right to acknowledge that making information requests with a deliberate intent to cause annoyance was an abuse of the legislation (paragraph 49 of the Decision Notice) but he was wrong to suggest (in paragraph 51 of the Decision Notice) that the First Request was unlikely to include an intention to irritate, disrupt or harass by virtue of it being made via solicitors.

The Commissioner had not placed a 'disproportionate evidential standard' burden on the Appellant. Reliance on regulation 12(4)(b) of the EIR required a careful analysis of all the circumstances, with appropriate supporting evidence.

In his investigation prior to the Decision Notice, the Commissioner gave details of what level of information and evidence he would expect to receive from the Appellant, although noted it was ultimately a matter for the Appellant as to how it responded to his enquiries. The Commissioner’s guidance on the application of regulation 12(4)(b) of the EIR also made it clear that a suitable level of detail was required from the Appellant to support its reliance on the exception.

The limits in the Fees Regulations were only an indicator and only applied to certain specified activities, rather than general request handling. Whilst regulation 12(4)(b) of the EIR may apply if the cost or burden of dealing with a request is too great or oppressive, regulation 7(1) of the EIR also sought to address particularly burdensome requests, allowing a public authority to extend the period for responding if it reasonably believed that the complexity and volume of the information requested meant that it was impracticable either to comply with the request within the earlier period or to make a decision to refuse to do so.

The Decision Notice properly considered whether the burden of each of the Requests was too great and its analysis did not detract from the general assessment of burden and the overall holistic analysis.

It was not accepted that the limits in the Fees Regulations was an indicator of unreasonableness but, in any event, its relevance must only be as a point of reference. The limits apply only to certain specified activities (which excludes identifying exempt information and undertaking redactions) and, unlike section 12 of FOIA, the cost of compliance goes to the holistic assessment of manifest unreasonableness for the purposes of regulation 12(4)(b) of the EIR. Further, the exceptions in the EIR must be interpreted restrictively.

The Public Interest Test may still require disclosure even if a request is found to be manifestly unreasonable. Even if the Public Interest Test does not require disclosure, the presumption in favour of disclosure under regulation 12(4)(b) of the EIR may still oblige disclosure of the relevant information.

The Commissioner did not find (as asserted by the Appellant) that reliance on regulation 12(4)(b) of the EIR would be precluded by the existence of some public interest but rather that this was simply a factor applied as relevant to considering ‘the value or serious purpose of the request’ and the Public Interest Test.

The information sought was (and remained) information which the Second Respondent regarded as important to properly understanding the Appellant’s proposals regarding the Project and providing useful feedback to past and upcoming consultations. It was a request prompted by change in circumstances; namely, the release of the ‘Making Meaningful Connections’ consultation document.

The context of this case was unusual when compared to the case law. This case arose in the context of consultation prior to a planning application for a nationally significant infrastructure project. It would be an error to conflate the burden of engagement during a consultation process with burden relevant to whether a request is manifestly unreasonable.

There was clearly significant public value in the Requested Information for those living around the proposed route for the Project (and both the Appellant and the Commissioner recognised that the Requested Information has value to the public); this was not a case where the Requests had no reasonable foundation.

The First Request arose directly from the ‘Making Meaningful Connections’ consultation documents issued by the Appellant. The first question in that consultation welcomed comments on the Appellant’s assessment concluding that the southern approach was preferable for the Project. The First Request was carefully crafted to ask for information that the Appellant itself relied upon in writing those consultation documents and reaching its conclusion. It was not a fishing expedition nor unreasonably broad in scope; it was a request aimed at the specific information relied upon by the Appellant in reaching its conclusions. As the Appellant was the author of those specific conclusions, it should not be unduly burdensome for it to produce the information it had already processed in coming to those conclusions.

The timing of the Requests was not inappropriate. The consultation documents were lengthy, and the Second Respondent is a voluntary organisation with limited time which was also awaiting legal input at the relevant time. In any event, the ‘Making Meaningful Connections’ consultation is one of a number of consultations which will occur and the Requested Information would be of significant utility for participation in the entire process relating to the Project.

The Appellant was wrong to say that some of the information sought via the First Request was already in the public domain but, in any event, if it was there was little or no burden in identifying it.

The Appellant was also wrong to say that much of the information sought by the First Request was intended for future publication and that there will still be sufficient time for the public to participate in consultations and make representations relating to the Project. A key issue is the proposed route alignment (which relates to the question asked by the consultation document) and therefore information relating to the choice of alignment was of most value now; at a later stage in the process the Appellant will have limited room to manoeuvre in considering consultation responses and modifying its proposals for the Project.

The Second Respondent had not seen evidence underpinning the Appellant’s assertion that it had spent 375 hours dealing with previous interactions. The Second Respondent is a group involved with the community around Cambridge, but it is not necessarily associated with all of the people which the Appellant claims it has had interactions with. In any event, the context of such communications is consultation on a nationally significant infrastructure project; interaction is necessary and was invited by the Appellant.

The ‘Making Meaningful Connections’ consultation was released on 31 March 2021 and the First Request was acutely focused on matters arising from that consultation document. Therefore the Appellant was wrong to suggest that communications between January 2020 and May 2021 concerned issues which were very closely linked to those raised by the First Request.

The Second Request and the Third Request were focused on expressing concerns about the consultation process, rather than being a request for existing information captured by the EIR (indeed, they were not intended to be requests for information under the EIR or FOIA). In the context of a consultation, such correspondence was part of the engagement process between a proposer and residents and was not unreasonable.

There was no intention for the Requests to cause undue annoyance and disruption. At the relevant time, many residents were expressing a community feeling of being ignored in respect of the Project. Whilst “infelicitous” wording was used in the minutes of a meeting (see paragraphs 23.j and 73), that did not detract from the point that this concerned determined engagement in the consultation process. In any event, the views of an individual (who was not a director of the Second Respondent) should not be elided with the Second Respondent.

The Appellant should be entitled to rely on regulation 12(4)(b) of the EIR to refuse the First Request, primarily because of the disproportionate burden that would be imposed by compliance with the First Request.

Witness A’s witness statement demonstrates the burden caused by the First Request. There was no refuting evidence to call into question that account of the burden.

In the context of section 12 of FOIA, there is no duty on a public authority to approach a wide-ranging request by searching up to the relevant costs limit and disclosing whatever it can within that limit - and the same approach should apply to regulation 12(4)(b) of the EIR.

Notwithstanding the statement of Witness 1 (see further below), the Appellant maintained that, at least to some extent, the pattern of communications and requests it received, and continues to receive, from or on behalf of the Second Respondent and CAG was designed to cause disruption and annoyance.

Whilst the Decision Notice recorded (at paragraph 43) the Second Respondent’s contention that the Second Request was not designed to obtain information, but rather to outline opposition to the Project, the Commissioner nevertheless found (at paragraph 58 of the Decision Notice) that it was irrelevant whether or not the Second Respondent’s intention was to request information; the fact was that it did seek information. The information sought in the Second Request (and in the Third Request) overlapped with that sought in the First Request before the Appellant had had a chance to respond to it.

Notwithstanding the statement of Witness 2 (see further below), it was not unreasonable for the Appellant to rely on an apparent intention to disrupt and cause annoyance as one relevant factor supporting its reliance on regulation 12(4)(b) of the EIR. The further information provided in the appeal demonstrated that Witness 2 was a participant in a working group involving one of the directors of the Appellant and that the meeting which Witness 2 attended (and noted at paragraph 35 of the Decision Notice) was convened by the Second Respondent and Witness 2 had participated in that meeting on the Second Respondent’s behalf. No evidence had been adduced by the Second Respondent that any of its other representatives at that meeting did or said anything to countermand the Witness 2’s invitation to cause ‘annoyance’ or to indicate that it did not represent the Appellant’s strategy. Accordingly, aside from the issue of the burden imposed by the First Request, the Tribunal was invited also to give weight to the above as a deliberately disruptive approach by the Second Respondent.

The Second Respondent’s evidence provided no adequate justification for the delay in the First Request being submitted, after the publication of the consultation document.

If on an appeal under section 57 the Tribunal considers—

that the notice against which the appeal is brought is not in accordance with the law, or

to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,

the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.”.

“Information is exempt information if the public authority holding it—

is obliged by environmental information regulations to make the information available to the public in accordance with the regulations, or

would be so obliged but for any exemption contained in the regulations.”.

“…any information in written, visual, aural, electronic or any other material form on—

the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);

measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;

reports on the implementation of environmental legislation;

cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and

the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c);”.

“(1)…a public authority that holds environmental information shall make it available on request.

(2) Information shall be made available under paragraph (1) as soon as possible and no later than 20 working days after the date of receipt of the request.”.

“Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6) and the remaining provisions of this Part and Part 3 of these Regulations…”.

Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if—

an exception to disclosure applies under paragraphs (4) or (5); and

in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.

For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that—…

the request for information is manifestly unreasonable;”.

Subject to paragraph (3), a public authority shall in respect of environmental information that it holds—

progressively make the information available to the public by electronic means which are easily accessible; and

take reasonable steps to organize the information relevant to its functions with a view to the active and systematic dissemination to the public of the information.

Paragraph (1) shall not extend to making available or disseminating information which a public authority would be entitled to refuse to disclose under regulation 12.”.

“(4) The information under paragraph (1) shall include at least—

the information referred to in Article 7(2) of the Directive; and

facts and analyses of facts which the public authority considers relevant and important in framing major environmental policy proposals.”.

“The Community legislature’s intention was to make the concept of information relating to the environment defined in Article 2(a) of Direction 90/3134 a broad one, and it avoided giving that concept a definition which could have had the effect of excluding from the scope of that directive any of the activities engaged in by the public authorities ... Directive 90/313 is not intended, however, to give a general and unlimited right of access to all information held by public authorities which has a connection, however minimal, with one of the environmental factors mentioned in Article 2(a). To be covered by the right of access it establishes, such information must fall within one or more of the three categories set out in that provision.”.

“…Nothing in the EIR suggests that an artificially restrictive approach should be taken to regulation 2(1) or that there is only a single answer to the question “what measure or activity is the requested information about?”. Understood in its proper context, information may correctly be characterised as being about a specific measure, about more than one measure, or about both a measure which is a sub-component of a broader measure and the broader measure as a whole...

It follows that identifying the measure that the disputed information is “on” may require consideration of the wider context, and is not strictly limited to the precise issue with which the information is concerned, here the communications and data component, or the document containing the information… It may be relevant to consider the purpose for which the information was produced, how important the information is to that purpose, how it is to be used, and whether access to it would enable the public to be informed about, or to participate in, decision making in a better way. None of these matters may be apparent on the face of the information itself.”.

the EIR must be interpreted purposively;

the term ‘environmental information’ must be read broadly;

a broad construction of that term does not, however, mean there is an unlimited right of access to environmental information;

the focus should be on the statutory language;

the test is not what the information is directly or primarily ‘on’;

determining ‘what a measure is on’ may mean looking at the wider context.

"... in deciding whether a request is "manifestly unreasonable" under the EIR, a tribunal should have regard to the same types of considerations as apply to the determination of whether a request is "vexatious" within FOIA. The conceptual structure for decision-making is different, but the outcome will surely be the same, whichever route is adopted. Insofar as a request is for environmental information, it therefore follows that the meaning of the expression "manifestly unreasonable" is essentially the same as "vexatious"…”. (Footnote: ¹²)

The Upper Tribunal in Dransfield

In the Upper Tribunal decision of Dransfield…, the Upper Tribunal gave some general guidance on the issue of vexatious requests. It 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. 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’…

The test under section 14 is whether the request is vexatious not whether the requester is vexatious. The term ‘vexatious’ in section 14 should carry its ordinary, natural meaning within the particular statutory context of FOIA. 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. 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 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.

Four broad issues or themes were identified by Upper Tribunal Judge Wikeley 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 were not exhaustive and were 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. 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. However if the public authority has failed to deal with those earlier requests appropriately, that may well militate against holding the most recent request to be vexatious. Equally a single well-focussed request for information is, all things being equal, less likely to run the risk of being found to be vexatious. Wide-ranging requests may be better dealt with by the public authority providing guidance and advice on how to narrow the request to a more manageable scope, failing which the costs limit under section 12 might be invoked.

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.

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.

The Court of Appeal in Dransfield

There was no challenge to the guidance given by the Upper Tribunal in the Court of Appeal. In the Court of Appeal, the only issue relevant to this appeal was the relevance of past requests. Arden LJ rejected the submission that past requests were relevant only if they tainted or infected the request which was said to be vexatious. She held that a rounded approach was required which did not leave out of account evidence which was capable of throwing light on whether the request was vexatious. In the Dransfield case the FTT had erred by leaving out of account the evidence in relation to prior requests that had led to abuse and unsubstantiated allegations directed at the local authority’s staff. That evidence was clearly capable of throwing light on whether the request directed to the same matter was not an inquiry into health and safety but a campaign conducted to gain personal satisfaction out of the burdens it imposed on the authority.

Arden LJ gave some additional guidance…:

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.”.

Witness A gave some further background and context to the Project, explaining the nature and scope of the Project and the fact that some information relating to it would be held on its behalf by external consultants which had implications for the Appellant’s ability to search for, identify and collate relevant information in response to requests;

There was no “specific information” on “specific conclusions” for the purposes of the First Request; the conclusions instead formed part of the wider “design, development and optioneering” for the Project as a whole;

They considered that the Requested Information sought by way of the First Request would have limited use in practice were it to be published, especially in the context of the iterative consultation process for the Project (as the consultation period had now closed) and various explanatory material had already been published.

The information sought by the Second Respondent was not necessary to enable the public to engage effectively with the Appellant’s proposals relating to the Project, to understand them or to provide informed responses to them.

The Requested Information sought by the First Request was technical information, which by its very nature was largely inaccessible to those without the relevant experience and expertise to understand it and it would have simply reiterated the already published conclusions. Other respondents had, though, commissioned their own operational analysis and had submitted that. The published conclusions of the operational analysis were all that was necessary to enable effective participation and response in respect of the Project.

The designs for the Project relevant to the subject-matter of the consultation in question were provisional pending consideration of the feedback generated in respect of that. It may well be the case that the emerging design of the Project or the Project objectives are changed as a result of that feedback. If so, then the Requested Information sought by the First Request would relate to matters which by then would have been completely superseded.

The Appellant had, in connection with the Project, had dealings with individuals connected with the Second Respondent prior to the formation of the Second Respondent as a limited company. This background was relevant to the assessment of the Requests as manifestly unreasonable. (Attached to the witness statement was a document summarising the nature and extent of the historical dealings, including the time expended dealing with them, for the period from 30 January 2020 – which was the date on which the preferred route option for the Central Section of the Project was announced – and 10 May 2021, being the date of the First Request.)

It was considered that there was a connection between the Second Respondent and certain other third parties, including Witness 2, and that there was evidence of a deliberate strategy of a campaign in opposition to the Project which was designed to be harassing and vexatious (with reasons given in support of these views).

Approximately 150,000 email items were likely to require retrieval and assessment. On an estimate of 1 minute (on average) per email for checking relevance, this would take around 2,625 hours (in contrast to the 18-hour limit provided for under section 12 of FOIA); this would cost the public purse around £65,000 (using an indicative hourly rate of £25, and in contrast to the £450 limit under section 12 of FOIA).

Moreover, if an employee of the Appellant was allocated to that task on a full-time basis (eight hours a day, five days a week) then it would take over 328 working days across 66 weeks to be completed.

In addition, there was the significant burden of retrieving and reviewing any other documents containing potentially in-scope information. Just one of the twelve sub-requests from the First Request alone would entail review of a further approximately 30 documents running to around 1,300 pages – and there would be additional documents requiring review in relation to the other eleven sub-requests of the First Request.

There would then need to be a process of review and scrutiny for potential exceptions (such as for legal professional privilege or personal data redactions), which may take up to some 7,000 hours (over three years) for the identified emails alone.

Whilst some informally constituted local action groups arose in respect of the Project and some people from those action groups joined informal working groups established by the Second Respondent (and some individuals and parish councils provided funding to the Second Respondent), the individuals involved in the village-level action groups were not acting on behalf of the Second Respondent or with its approval. Similarly, the Second Respondent was not orchestrating a co-ordinated overall campaign.

However, the Second Respondent did accept that it has, at times, played a co-ordinating role - for example, its involvement in parish council questions, in which the Second Respondent may have helped the Appellant by reducing the number of duplicated questions. Nevertheless, it was wrong to attribute to the Second Respondent the actions of all those who share its objections to the proposals relating to the Project.

In respect of the First Request, the Second Respondent considered that the Appellant would have the Requested Information (and the witness statement set out a table listing the sub-requests made in the First Request and referenced the consultation material and associated text which supported its view that the Requested Information would be held). In relation to 9 of the 11 sub-requests, the First Request gave explicit references to the Technical Report showing that it was seeking the information which underlay the conclusions in the relevant documents or is implicit in those conclusions. For the other two sub-requests, the First Request was clear that if the Appellant did not have the information it was not being asked to create it. However, if the information did not exist then it would also have been useful to know that in connection with the Second Respondent’s assessment of the information provided in the Technical Report.

The information sought in the First Request remains useful for so long as the question of the approach to Cambridge remains open.

Witness 1 did not believe that any of the Requested Information was in the public domain at the time of the First Request – and was still unaware of where it is, if it was in the public domain. The Appellant did not direct them to where the information was publicly available. The Second Respondent would not go to the expense of having the First Request prepared by counsel and reviewed and sent by solicitors if it had all the information it considered would be useful to it in assessing the Appellant’s proposals.

The Second Respondent has formally only ever comprised two people and at the time of the First Request, between them they had made four other information requests. The Second Respondent was not aware that anyone has made any other requests under FOIA or the EIR on its behalf to the Appellant and it has not authorised anyone to do so.

The Appellant had referred to 158 interactions with the ‘Cambridge Approaches Group’ but communications between the Appellant and communities is part of the consultation and engagement relating to the Project and important to planning decisions. The Appellant had invited interactions as part of its public consultation process and it would be unfair to treat those interactions as a negative point to be taken against the Second Respondent as part of the history of its communications with the Appellant for the purposes of assessing the First Request.

The Second Respondent has no control over the interactions between others (including participants in the informal working groups which the Second Respondent had established and supporters of the Second Respondent) and the Appellant.

The Second Respondent did not make requests for information with the intention of causing disruption or annoyance to the Appellant. The requests it made were because it was seeking information to enable it to assess the Appellant’s proposals or conclusions.

The purpose of the Second Request, which made no reference to either FOIA or the EIR, was to outline opposition to the Appellant and was aspirational in asking for things that should be produced or should be done. The Second Respondent did not consider itself to be making a request under FOIA or EIR by way of the Second Request.

In respect of the Third Request, the questions raised were not intended to be requests under FOIA or the EIR – they were not requests for existing documents but considered to be part of the consultation process. Questions had been provided by the Second Respondent to the local MP following his invitation (to the general public) for issues which he might raise with the Appellant. However, there were some differences between information provided to the MP by the Second Respondent and the content of the Third Request; this was assumed to be a result of discussions which were also held with the Second Respondent and third parties.

Whilst the meeting had been convened by a director of the Second Respondent, Witness 2 had offered to speak at the meeting on their own initiative, when it was mentioned by one of the Second Respondent’s directors (not Witness 1) at an earlier working group meeting which Witness 2 was present at. The speech given by Witness 2 at the meeting was prepared without input from that director.

Witness 2 was not offered an opportunity to comment on the minutes when they were originally written. The parts attributed to them were a fair summary of the words they used, but were taken out of context. With hindsight, the phrase "annoying mosquito" was unfortunate and a more accurate reflection of their message would be "determined" and "keep going if you don't get a reply at first".

Witness 2 considered that there would be no doubt that it was clear to all present at the meeting that they were not suggesting that parish councils take actions for the purpose of annoying or disrupting the Appellant. The reason they suggested actions for the parish councils to consider was as set out in the first of the sentences quoted in the minutes; "actions that all of us can do to make sure our voice is still heard at [the Appellant]".

Witness 2 had never made a request to the Appellant under FOIA or the EIR.

the Second Request should not have been treated as a request for information by the Second Respondent for the purposes of the EIR (or FOIA); and

the Third Request was not a request for information made by or on behalf of the Second Respondent.