Liam O’Hanlon v The Information Commissioner & Anor

This is an appeal against the Decision Notice of the Commissioner (“the Commissioner”), referenced IC-273298-P0G6, dated 23^rd July 2024.

On 10^th June 2023, the Appellant wrote a lengthy email to the Cabinet Office in which he made a request for information (request reference FOI2023/09292). That email listed 16 specific requests, which were as follows:

“Specific New requests for Recorded Information held by the Cabinet Office

In each case I shall state the subject-matter and the request is for all recorded information which comprises, records or relates to it. I have indicated the source of my belief that information may be held.

[Refer to Cabinet Office Letter of 09.01.23, saying “although the DCMS acts as the ICO’s sponsor…the ICO is operationally independent of government in its day-to-day decisions” and “the Cabinet Officer [has] responsibility for freedom of information policy”.]

It is, however, important to understand the context of this request, which followed on from the Appellant writing to his Member of Parliament, Bambos Charalambous MP on 15^th February 2022. That letter referred the Member of Parliament to the Commissioner’s Guidance of 28^th August 2018 in respect of section 36 of the Freedom of Information Act 2000 (“FOIA”) and the application of the Qualified Person requirement. Specifically, the Appellant wished the Member of Parliament to question the legality of the Commissioner’s Guidance at the time, which he said suggested that a public authority may select ‘an alternative person as the need arises’ to fulfil the function of a Qualified Person, without authorisation from a Minister. Accompanying that letter was an ‘Explanation of the Background’ to the letter, which referred back to events concerning the Barnet, Enfield and Haringey Mental Health Trust in May 2013 as being the origin of these concerns.

On 21^st December 2022, Bambos Charalambous MP wrote a letter to the then Secretary of State for Digital, Culture, Media and Sport (“DCMS”), Michelle Donelan MP, expressing concern about how the Commissioner’s 2018 guidance had seemingly given licence to public authorities choosing “between the use of its validly authorised in-post QP [Qualified Person] and an unauthorised ‘acting-up’ alternative to take the burden off, for example an NHS Chief Executive.”. The letter concluded with the Member of Parliament asking for two things to be done. Firstly, to ask the Information Commissioner’s Office at the appropriate executive level to consider re-amending the [2018] Guidance to revert to the Ministry of Justice’s wording. Secondly, the Member of Parliament asked for the Information Commissioner’s Office to be encouraged to review the motivation of responsible officers within the Office for the initial adoption of the ‘principle of delegability’ and then its deployment in the handling of his constituent, Liam O’Hanlon’s case.

Baroness Neville-Rolfe DBE CMG, who was serving as Minister of State at the time of these events, responded to the Member of Parliament in writing on 9^th January 2023, setting out that the Information Commissioner’s Office is operationally independent of Government in its day-to-day decisions, that an updated version of the Commissioner’s Guidance relating to the operation of section 36 had now been issued, and that the correct course for Mr O’Hanlon, should he be dissatisfied with the outcome of his information request, was to make a complaint to the Commissioner, and beyond that to a Tribunal. The letter noted that Mr O’Hanlon had exercised his right of appeal, though at that time, the outcome of that appeal was not known.

On 26^th January 2023, the Appellant made a subsequent request for information (request reference FOI2023/01124), seeking “information which comprises, records or is related to “contact with the ICO” as referred to in the Minister of State’s letter to Bambos Charalambous MP under reference MC2022/18026- the request extends to information which comprises, records or is related to that contact, or such contact between DCMS and the ICO for that purpose.”.

The Cabinet Office response to that request (request reference FOI2023/01124), dated 25^th May 2023, disclosed some information to the Appellant, with the remainder being withheld under section 36 FOIA.

Following that response, on 10^th June 2023 the Appellant made the request, which is the subject of this appeal, to the Cabinet Office (request reference FOI2023/09292), containing the 16 areas of interest identified at paragraph 2 above (this request was not logged by the Cabinet Office as a request for information under FOIA until 29^th July 2023).

The following day on 11^th June 2023, the Appellant requested an internal review of the Cabinet Office’s previous decision of 25^th May 2023 in relation to the earlier request of 26^th January 2023 (FOI2023/01124).

On 12^th June 2023, the Cabinet Office acknowledged the Appellant’s request of 11^th June 2023 for an internal review of the decision of 25^th May 2023.

On 13^th June 2023, the Cabinet Office wrote to the Appellant in relation to his most recent request (FOI2023/09292), asking “So that we may best assist you, are you able to clarify what exact recorded information you are seeking?”.

The Appellant responded to the Cabinet Office on 15^th June 2023, stating, amongst other things, that his letter of 10^th June 2023 “had been corrupted by IT gobbeldegook”. This was because some formatting data had appeared in the original email before each of the 16 areas of interest that had been raised. However, he went on to state as follows:

“…please note that in respect of each sub-request, I sought information which comprises, records or relates to the subject-matter. I shall cross-refer thus, [12], to each sub-request.

I wish to have any document on which the assertion that the CO is responsible for FOI policy is based [1] and [2] any document as to applying a distinction between FOI policy and ICO operational matters, as applied to 3 areas of governance. (My Request at sub-request 2 listed the 3 specific areas to be addressed, which I need not repeat.) As a corollary, I wish [3] to have any document that concerns the operational independence of the ICO.

Sub-requests [4] to [6] concern the process by which the CO sought to arrive at a response to my MP’s concerns, via contact with the ICO. Note that the drafting of the Minister of State’s response of 9 January 2023 would be ‘related to’ that contact.

I wish to see the document and terms of any transmission from the DCMS to the CO of the MP’s letter under reply [4], including transmission of the exchanges between the MP and the ICO referred to in his letter to the DCMS [5]. As an updating of my Request of 26 January 2023 I seek records of CO-ICO contact not caught by that request [6] (under FOIA case law each FOI request is time-limited).

Sub-requests [7] to [11] relate to the process by which the CO sought and obtained a QPO. I seek [7] any document stating, identifying or defining the CO’s statutory QPO. (My understanding is that its QP is identified by FOIA as a minister, but the ICO Guidance may have been treated as undermining that principle.) I seek any recorded decision that section 36 was engaged [8a] or [8b] that it would be engaged upon receipt of a QPO. I seek this at the points in time corresponding to CO assertions that (all) the information was exempt. I seek the record of requests, submissions and/or evidence submitted to the person identified as the CO’s QP [9] and then of any QPO [10]. I also seek records of any contact with the ICO during the process of obtaining the QPO, in particular relating to any ICO advice about the section 36 requirements [11].

Sub-request [12] relates to the second stage process of balancing public interests and I seek the record of all such process (in which weight should be given to the QPO as to potential prejudice to effective governance). (This stage may have been between 23.02.23 and 25.05.23 but after the first assertion that all the information was already exempt.)

Sub-requests [13] and [15] are for any record of contact between the ICO and CO referred to in disclosed e-mails: [13] which led the CO on 21.12.22 to remember that the ICO was to revise Guidance and [15] which was scheduled to take place on 11.01.23.

Sub-requests [14] and [16] relate to information amounting to [14] ministerial correspondence about delegation and [16] advice circulated to other government departments about section 36 FOIA. ( I specified the source of my knowledge of the [13] to [16] material in my Request of 10 June 2023.)

I am sorry to say that, having gone to the trouble of complying with your request for clarification, I do not believe that it was necessary, and I urge you to proceed without unnecessary delay in complying with the Cabinet Office’s obligations both as to substance and as to time”.

On 29^th July 2023, the Appellant complained and requested an internal review of the handling of his request for information of 10^th June 2023. The Cabinet Office responded on 2^nd August 2023, apologising for any confusion caused by its request for clarification of 13^th June 2023, and for the lack of a response to the Appellant’s email of 15^th June 2023. The request of 10^th June 2023 was ultimately logged as a new request for information under FOIA on this date (request reference FOI2023/09292).

On 29^th August 2023, the Cabinet Office issued its decision to the Appellant in relation to his request of 10^th June 2023 (FOI2023/09292). The Cabinet Office referred to the request of 10^th June 2023 as overlapping and repeating the concerns raised in the subsequent email of 11^th June 2023, seeking an internal review of its decision of 25^th May 2023, and went on to state as follows:

“We consider that it is potentially disrupting and burdensome for us to divert resources from that internal review to answer your new request. This is particularly so as some parts of that request, for example items 1, 2 and 3, are scoped very broadly, and that other parts are directly related to the concerns you raise in your letter asking for an internal review...We also consider that your request of 19^th June 2023 illustrates ‘vexatiousness by drift’. It relates to correspondence sent on your behalf by Bambos Charalambous MP to the Minister (Cabinet Office ref: MC2022/18026). The subject matter of that correspondence was Information Commissioner’s Office (“ICO”) guidance on section 36 of the Act, the role of the ‘Qualified Person’ and the delegation of that role. The Member had previously raised this issue directly with the ICO and, in his letter to the Minister, expressed his disappointment with the response received. He asked the Minister “to encourage the ICO to review the motivation of responsible officers within the ICO for the initial adoption of the ‘principle of delegability’ and then its deployment in the handling of my constituent Mr Liam O’Hanlon’s case. Our understanding is that the ICO’s position with regard to the delegation of the Qualified Person’s role as set out at section 36 of the Act and associated guidance has been a matter you have raised, including through the appeals process, since at least 2015.”

In deciding that the request was vexatious for the purposes of section 14(1) FOIA, the Cabinet Office’s letter went on to state as follows:

“We recognise that you remain dissatisfied with the ICO’s handling of your concerns, and with the Minister’s subsequent response to the Member of parliament. We also acknowledge that a request asking for information about a previous FOI request (known as a meta request) is a valid request, and cannot, as a matter of course, be refused as vexatious. However, in this instance, we consider that the objective value and purpose of your new request is diminished as your underlying grievance is a long-running matter that has been considered in detail. Nor would processing your new request serve a public interest beyond that which would be served by completing the internal review process initiated by your correspondence of 11 June.

We also consider that the tone and some of the language you have used in your correspondence, such as ‘a bogus act’ and ‘evasion’, implies bad faith on the part of civil servants who have dealt with both your and the Member’s correspondence. Whilst it may not be your deliberate intention, the language you have used is both unnecessarily confrontational and inappropriate.

We are satisfied that any value and purpose of your request (which we consider to be diminished in any event) certainly does not justify the disruption, irritation and distress which would be caused by handling your request. We have therefore concluded that we are not obligated to comply with your request on the grounds that we regard it as vexatious for the purposes of section 14(1) of the Act”.

On 1^st September 2023, the Appellant asked the Cabinet Office to review its decision of 29^th August 2023.

Following the internal review, the Cabinet Office wrote to the Appellant on 8^th December 2023, informing him that it had upheld its decision that section 14(1) FOIA applied to his request of 10^th June 2023, concluding that it was vexatious by reference to the case of Information Commissioner v Devon County Council and Dransfield [2012] UKUT 440 (AAC).

In response to an assertion having been made by the Appellant that the Cabinet Office had failed to carry out or respond to his internal review request in relation to the handling of the request of 26^th January 2023 (see para. 9 above), it was confirmed in this letter that an internal review of that request was carried out and a response was issued on 18^th October 2023. The Cabinet Office provided an internal reference of IR2023/06944 for this response.

The Appellant made a complaint to the Commissioner on 7^th November 2023 about the way his request for information had been handled and the decision.

On 23^rd July 2024, the Commissioner issued his Decision Notice, which, in summary, concluded the following:

On 12^th August 2024, the Appellant sent his Notice of Appeal to the Tribunal, challenging the Decision Notice.

The Appellant submits that the Decision Notice was wrong in law. For the purposes of this appeal, the panel additionally considered whether the Commissioner ought to have exercised his discretion differently when deciding that the Cabinet Office was entitled to rely upon section 14(1) FOIA.

The Appellant invites the Tribunal to set aside the Decision Notice and substitute it with a Decision Notice which requires the Cabinet Office to disclose the information being sought.

The Commissioner informed the Tribunal in his Response of 18^th September 2024 that the appeal was opposed, and that he stood by the finding that the Cabinet Office was entitled to rely upon section 14(1) FOIA to refuse the request for being vexatious. The Commissioner indicated that he did not propose to make any further representations or submit further documentation for this appeal.

The Cabinet Office was subsequently added as a party to the appeal and confirmed in its response of 16^th January 2025 that it intended to oppose the appeal, maintaining its position that the request was vexatious.

The applicable law is as set out below:

The term ‘vexatious’ is not statutorily defined. However, in Information Commissioner v Devon County Council & Dransfield [2012] UKUT 440 (AAC), the Upper Tribunal held that the purpose of s.14 “must be to protect the resources (in the broadest sense of the word) of the public authority from being squandered on disproportionate use of FOIA.”. That formulation was subsequently qualified by the Court of Appeal in Dransfield v Information Commissioner [2015] EWCA Civ 454 to the extent that “that aim [is] one only to be realised if the high standard set by vexatiousness is satisfied.”.

In Dransfield, the Upper Tribunal identified four key issues were relevant when deciding whether a request is vexatious: (1) the burden (on the public authority and its staff); (2) the motive (of the requester); (3) the value or serious purpose (of the request); and (4) any harassment or distress (of and to staff). However, the Upper Tribunal pointed out that these four considerations were not exhaustive, nor did they create a formulaic checklist: a holistic and broad approach was needed.

In Cabinet Office v Information Commissioner and Ashton [2018] UKUT 208 (AAC), the Upper Tribunal confirmed that s.14 FOIA may be invoked on the grounds of resources alone. A substantial public interest supporting the request does not necessarily trump an argument based on resources:

“In some cases, the burden of complying with the request will be sufficient, in itself, to justify characterising that request as vexatious, and such a conclusion is not precluded if there is a clear public interest in the information requested. 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 Upper Tribunal clarified that the public interest in the subject matter of the request must be balanced against the competing burden imposed upon the public authority by complying with that request.

The Tribunal has the following powers when determining appeals against the Commissioner’s decisions for the purposes of FOIA:

The parties had submitted written evidence to the Tribunal prior to the hearing, comprising of an Open Bundle of 931 pages (including an index). A Closed bundle was not considered to be necessary in the circumstances of this appeal.

In addition to the Open Bundle, the Tribunal had been provided with copies of the following:

In summary, the Appellant advances the following arguments in support of the requested information being disclosed:

The Cabinet Office’s submissions are summarised as follows:

This information request of 10^th June 2023 was only the second such request made to the Cabinet Office, but both of these requests followed the letter which Bambos Charalambous MP had sent to the Secretary of State for Digital, Culture, Media and Sport at the request of the Appellant, and the subsequent ‘unsatisfactory’ response, from the Appellant’s point of view, received from Baroness Neville-Rolfe DBE CMG, who was serving as Minister of State, at the time. However, prior to that point, there had been numerous requests for information, relating to the application of section 36 FOIA and what has been termed ‘the delegability’ of the qualified person role, going back to 2013, which is when the events at the MHT, which gave rise to the first request, arose.

That initial request in October 2013 followed a number of complaints being made to the MHT, which resulted in investigation, and further complaints to the Parliamentary and Health Service Ombudsman. The MHT’s response to a second request of 26^th May 2014 then provided some of the requested information, but withheld other information under section 40(2) FOIA and section 36(2)(b)(ii) FOIA (that in the reasonable opinion of a ‘qualified person’ it would or would be likely to inhibit the free and frank exchange of views for the purposes of deliberation). When the Appellant complained to the Commissioner about this decision, and the Commissioner agreed that the section 36 FOIA exemption had been correctly relied upon, albeit recognising that the Information Commissioner’s Office own guidance required amendment, the Appellant then turned his attention towards the Commissioner. What then followed were a number of further requests for information to the Commissioner on 12^th December 2017, 29^th May 2018, 25^th July 2018, 3^rd November 2018 and 14^th March 2019, with the principal focus being on the application of the section 36 FOIA exemption and the delegability of the qualified person role. A number of appeals followed, and then the Appellant sought the assistance of his Member of Parliament, before turning his focus towards the Cabinet Office in January 2023.

As Upper Tribunal Judge Wikeley stated in Dransfield at [10], “the purpose of section 14…must be to protect the resources (in the broadest sense of the word) of the public authority from being squandered on disproportionate use of FOIA.”. The operation of section 14 is not by way of an exemption, but is instead a mechanism by which a local authority may refuse to comply with a request for information if it considers it to be vexatious. In essence, it provides the public authority with a way to say, as the learned Judge stated at [11], “Enough is enough…”, as long as the high bar set by vexatiousness is reached.

Whilst the four broad themes identified in Dransfield are not exhaustive, nor are they to be considered as a checklist, they are useful in assisting the Tribunal to focus on the issues raised by a request.

The request of 10^th June 2023 is the latest in a long chain of requests going back to 2013. Whilst there may have been a legitimate public interest in the operation of the delegability of the qualified person at the outset in 2013, that has diminished over time, particularly from the point where the Information Commissioner’s Office published revised guidance on the issue on 28^th August 2018. Nevertheless, the Appellant has pursued this issue to the point where the focus is no longer on the guidance itself, but on matters ancillary to it. The value or serious purpose has, in our view, diminished to the point where there is no longer a significant public interest in the disclosure of the information sought by the Appellant.

The burden of these requests is not only measured by the repeated nature of these requests, but additionally by the overlap between requests and requests for the authority to review its previous decisions, which came after the instant request for information. The Cabinet Office in this instance has found itself receiving a new request following its earlier January 2023 decision, and then a request for that decision to be reviewed, which echoes much of what was in the new information request. That in itself is burdensome for the public authority to deal with, but we are conscious, having read both the request of 10^th June 2023 and the follow-up of 15^th June 2023, that even allowing for the fact that the earlier request had “been corrupted by IT gobbledegook”, it is unnecessarily convoluted and difficult to ascertain exactly what information the Appellant is seeking. This would undoubtedly require a great deal of time to decipher, if that is even possible, and to ascertain exactly what it is that the Appellant is seeking. In these circumstances we do not consider that the Cabinet Office’s request of 13^th June 2023, which stated, “So that we may best assist you, are you able to clarify what exact recorded information you are seeking?”, was in any way designed to be unhelpful or to “disappear the request in question”, as the Appellant suggests, but was rather a request for the Appellant to provide clarification such that it would enable the Cabinet Office to focus any search.

The underlying motive of the Appellant appears still to be the events in 2013, and his continual efforts to re-open matters which have already been the subject of numerous appeals and/or previous FOIA requests for information demonstrates that he is keen to pursue his line of enquiry, even when those efforts have seemingly run their course to the point where they have been exhausted. This is clearly a cause of frustration for the Appellant, as he has expressed such in his often combative and accusatory tone when corresponding with Cabinet Office staff. As with previous requests made of the Commissioner, the language used, which has referred to “intentional misfeasance and nonfeasance”, “a bogus act”, “abuse[d]…the Act”, and referenced the “truth” and “truthfully” in contexts where there is a clear questioning of the integrity and professionalism of Cabinet Office staff. Whilst it may not have been the Appellant’s intention to cause distress to or harass the staff concerned, it is unfortunately a natural consequence of his accusations and suggestions that such harm is likely to have occurred.

In our view, this is a classic case of vexatiousness by drift, as envisaged in Dransfield, where the Appellant changes his focal point (i.e. the public authority concerned) when he has either exhausted what he perceives to be a particular avenue, or when he believes that he has found a chink in another public authority’s armour to be exploited. We have no hesitation in deciding that the Commissioner was correct to find this request vexatious under section 14(1) FOIA, and we do not consider that the Commissioner ought to have exercised his discretion differently in deciding that it was so.

The appeal is dismissed.