Andrew Lownie v The Information Commissioner & Anor

This is an appeal against a decision of the Information Commissioner (the “Commissioner”) dated 13 March 2025, reference IC-336387-V0P9 (the “Decision Notice”).

A hearing took place via CVP on Friday 19 September 2025. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way. There were no interruptions of note during the hearing. The Appellant represented himself. The first Respondent did not attend. The Second Respondent was represented by Mr Andrew Deakin, counsel. Mr Stewart MacLeod, Deputy Director of Knowledge and Information Management Services, gave evidence on behalf of the Second Respondent.

The appeal relates to the application of the Freedom of Information Act 2000 (“the FOIA”). It concerns information held by the Foreign, Commonwealth and Development Office (“the FCDO”), who have been joined as the Second Respondent.

The request centres on a single document (“the Manual”). The Manual was created to advise FCDO sensitivity reviewers in handling sensitive content. The drafting of the Manual involved the engagement of multiple stakeholders, including FCDO Internal Departments, the Ministry of Defence, the Royal Household, Cabinet Office, and government agencies.

The Appellant made the request which is the subject of this appeal on 19 August 2024 in writing as follows:

“I am making a request to see the guidance manual issued to sensitivity reviewers minus items covered by s37”.

The FCDO responded in writing on 09 September 2024. The FCDO confirmed that they held information within the scope of the request but relied on section 14(1) of FOIA to refuse the request, specifically on the basis that the request imposed an unreasonable burden on them. The FCDO’s response stated:

“In this case, the scope of your request encompasses a substantial volume of information. Complying with your request would require an extensive review of the material, including consulting with third parties, considering the applicability of various exemptions, and making any necessary redactions. The time and effort required to undertake these tasks would impose a significant and disproportionate burden on our resources.

…..

In this instance, the sheer volume of information and the complexity of the review process would result in an excessive strain on our resources, diverting attention from other essential functions and responsibilities.

Furthermore, the ICO advises that when assessing whether a request is vexatious, public authorities should consider the context and history of the request, the burden it would impose, and the value and purpose of the request. While we acknowledge the importance of transparency and accountability, we must also balance this against the need to use our resources effectively and efficiently.

Given these considerations, we have determined that complying with your request would be excessively burdensome and would significantly disrupt our operations”.

The Appellant made a request for an internal review of the decision on 09 September 2024, stating that “there is a public interest argument”.

The Appellant repeated this request for a review of the decision on 29 September 2024, stating:

“Presumably the guidance manual is available to sensitivity reviewers in a concise form or otherwise they would not be able to carry out their job? If it is not then would the FCDO explain exactly what form the guidance takes, why my request ‘encompasses a substantial volume of information’ and how complying with the request ‘would require an extensive review of the material’ and ‘cause a disproportionate level of disruption, irritation or distress’. There is a strong public interest in understanding the basis on which exemptions are applied to prevent the release of information”.

The FCDO responded to the request for an internal review on 01 October 2024. The review upheld the initial decision that complying with the request would be excessively burdensome and would significantly disrupt the FCDO’s operations and therefore should be refused under section 14 of FOIA.

The Appellant lodged a complaint with the Commissioner on 04 October 2024. He stated that:

“My argument is that it cannot be difficult to supply the guidance manual which presumably has to be provided to sensitivity reviewers to do their job. I do not believe 14(1) applies. There is a strong public interest in understanding the basis on which our history is censored. None of the questions I posed in my review request were answered”.

The complaint was accepted by the Commissioner on 09 October 2024. On 22 January 2025 the Commissioner wrote to the FCDO, asking them to provide details of the detrimental impact of complying with the request, why the impact would be unjustified or disproportionate in relation to the request itself and its inherent purpose or value and, if relevant, details of any wider context and history to the request.

The FCDO responded on 03 February 2025. In addition to the information that had previously been provided in the initial response and review response, the FCDO stated:

“Complying with the request would be detrimental to our ability to meet our legal obligations under the Freedom of Information Act & Public Records Act programme. Significant resources would be required to engage with a wide range of stakeholders, and the release of the requested information could prejudice a wide range of issues, including national security and international relations.

…..

Additionally, the likely percentage of the document that is releasable is minimal due to the nature of the content. To allow the ICO to understand the sheer volume of information this request encompasses this document more than 100 separate sections of guidance on material dating from 1704 to the present day”.

The FCDO also noted that, since August 2023, they had handled seven requests/complaints from the Appellant in relation to their internal guidance. They maintained that, in their view, the request served “no easily discernible benefit to the public”.

The FCDO provided additional information to the Commissioner on 09 February 2025. They stressed that it was the sheer volume of information being sought which, in their view, far exceeded what would be considered reasonable to process. They stated that the requests “have been persistent and repetitive, focusing on the same subject matter – guidance issued to sensitivity reviewers. The requester has continued to submit follow-up requests and internal review requests, demonstrating a pattern of behaviour that we believe can be considered vexatious……Despite being informed that certain information is exempt under Sections 37, 40, and 41 of the FOIA, the requester has persisted in making requests for the same information. This unreasonable persistence further supports the argument that the requests are vexatious”.

On 15 February 2025 the Appellant wrote to the Commissioner’s case handler and stated “If the MOD can provide their Review Guide (albeit redacted) so can the FCDO”. He included a copy of a request that he had made to the MoD (Ministry of Defence) on 25 November 2024 asking for the guidance used by MoD officers who “review records for release under PRA” and the response received from the MoD on 13 February 2025 in which they provided the Appellant with a redacted copy of their ‘Blue Guide Review Section’ (also known as the ‘Ministry of Defence Manual for Sensitivity Reviewers’).

On the same date, a phone call took place between the FCDO and the Commissioner’s case handler. The FCDO confirmed that they received around fifty requests from the Appellant per year, albeit not all in relation to the Manual. The FCDO stated that, unlike the MoD’s sensitivity guide which is pre-prepared for release, the FCDO Manual is not pre-prepared for release. By way of an estimate of the time that would be involved in preparing it for release, the FCDO stated that the last update of the Manual had taken six months to complete. The FCDO stated that, whilst they had considered the application of section 12, they had concluded that a refusal under section 14 of FOIA was more appropriate as the grossly oppressive burden would come from the need for extensive third-party consultation and heavy redaction.

In a follow-up email on 19 February 2025, the FCDO stated that:

“The sheer volume and complexity of the information requested is overwhelming.

…..

As the FCDO is the lead department for international relations, this guidance covers our relations with hundreds of countries and international organisations. Many of these entities would need to be consulted if we were to consider releasing this material. Additionally, multiple government departments would also need to be consulted due to our Embassies and Consulates being hubs of one HMG overseas.

Having checked with the Head of the sensitivity review service when this guidance was last updated, it took a sensitivity reviewer six to nine months for all sections to be completed due to the extensive cross-departmental consultation required to ensure the guidance was current”.

Additional information was provided by the FCDO on 04 March 2025, in which they stated that the Manual contained 178 pages and approximately 45,000 words. Each section was approximately two pages in length, although it was dependent on the topic. It was anticipated that, in order to redact the guide, at least the exemptions pursuant to sections 23, 24, 26-28, 31, 36-38, and 40-43 would be triggered.

The Commissioner decided that the FCDO were entitled to rely on section 14(1) of FOIA to refuse the request, and did not require further steps to be taken.

In summary, the reasons for the Commissioner’s decision were:

The Appellant appealed on 09 April 2025.

The Grounds of Appeal were, in essence, that:

The Commissioner’s response, dated 12 June 2025, maintained that the Decision Notice was correct.

The Commissioner stated that he could not comment on the approach taken by the MoD and instead had to consider the request and the FCDO’s response on its own merits. He was also satisfied by the information provided by the FCDO that the MoD’s guide was pre-prepared for release, whereas their one was not. He also noted that the Appellant’s arguments about the public interest in the information provided by the MoD did not alter his findings in this case that there was unlikely to be a significant public interest in the minimal information suitable for disclosure following redaction by the FCDO, and he remained satisfied that the burden of compliance would outweigh the public interest.

The Commissioner maintained that section 14(1) applied on the grounds of resources alone to show that the request was vexatious due to the oppressive burden compliance that would be imposed on the public authority.

The FCDO resists the appeal and submits that complying with the request would impose a grossly oppressive burden on its resources and would be of limited public interest, given the significant amount of material that would be exempt from disclosure under alternative FOIA exemptions.

In essence, the FCDO’s response was:

The relevant provisions of FOIA are as follows:

The FOIA does not provide any assistance as to what is meant by ‘vexatious’. The Upper Tribunal gave guidance in Information Commissioner v Devon County Council and Dransfield [2012] UKUT 440 (AAC), as upheld and clarified by the Court of Appeal in Dransfield v Information Commissioner and Devon County Council [2015] EWCA Civ 454.

As noted by Arden LJ in her judgment in the Court of Appeal in Dransfield, the hurdle of showing a request is vexatious is a high one: “…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” (para 68).

The Upper Tribunal set out four non-exhaustive broad issues which can be helpful in assessing whether a request is vexatious:  

It was noted by Judge Wikeley in the Upper Tribunal in Dransfield that “…one particular factor alone, present to a marked degree, may make a request vexatious even if no other factors are present” (para 43).

Overall, the purpose of section 14 is to “protect the resources (in the broadest sense of that word) of the public authority from being squandered on disproportionate use of FOIA” (Upper Tribunal, para 10).

In the Upper Tribunal in Dransfield, Judge Wikeley referred with approval to the Upper Tribunal decision in Wise v Information Commissioner (EA/2010/0166), namely that “Inherent in the policy behind section 14(1) is the idea of proportionality. There must be an appropriate relationship between such matters as the information sought, the purpose of the request, and the time and other resources that would be needed to provide it” (para 49).

The Upper Tribunal confirmed in Cabinet Office v Information Commissioner and Ashton [2018] UKUT 208 at paragraph 27 that “The law is thus absolutely clear. The application of section 14(1) of FOIA requires a holistic assessment of all the circumstances. Section 14 may be invoked on the grounds of resources alone to show that a request is vexatious. A substantial public interest underlying the request for information does not necessarily trump a resources argument”.

The Tribunal’s remit is governed by section 58 of 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 an exercise of his discretion, whether he ought to 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.

The issue for the tribunal to determine is whether the Information Commissioner’s Decision Notice was in accordance with the law and whether the Information Commissioner was correct in upholding the decision of the FCDO to rely on section 14(1) in refusing to respond to the Appellant’s request.

We read and took account of the following material:

We also heard open and closed evidence from Stewart MacLeod on behalf of the FCDO, and oral submissions on behalf of the Appellant and the FCDO.

Having considered the authorities outlined above, we are satisfied that, in deciding whether a request is vexatious, all of the relevant circumstances must be considered in order to reach a balanced conclusion. The burden which compliance with the request will impose on the resources of a public authority is a relevant consideration in such an assessment and may, in some cases, be sufficient in itself to justify characterising a request as vexatious. However, we recognise that there is a high threshold to be passed in refusing a request on this ground.

The Tribunal considered the non-exhaustive list of issues as set out by the Upper Tribunal in Dransfield and the overall circumstances of the case. The FCDO has not sought to address us in relation to the motive of the Appellant or to allege any harassment of or distress caused to its staff, and so we have focused our deliberations on the burden imposed on the FCDO by the request and on the value or serious purpose of the request.

The burden imposed on the FCDO by the request is the key factor that is relied upon by the FCDO.We note that, whilst the mere fact that responding to a request may be burdensome, that in itself does not absolve the FCDO from their legal obligations under FOIA. In assessing the burden imposed on the FCDO, we have considered the three factors that have been identified by the Commissioner as being particularly relevant (see paragraph 20 above), and deal with them each in turn.

We are satisfied that a substantial volume of information is sought by the Appellant. We note that the Manual runs to 178 pages, with approximately 100 separate sections of information.

Having viewed the content of the Manual and recognising its intended use by sensitivity reviewers of government documents, we accept that the FCDO’s concerns about potentially exempt information are valid and substantial. We accept the information provided by the FCDO that, in order to assess disclosure, it is likely that at least thirteen potential exemptions would need to be considered and may be applicable.

Having viewed the contents of the Manual and heard evidence from Stewart MacLeod, we are satisfied that it would not be possible to easily and quickly isolate information that may be suitable for disclosure as the sensitive information is embedded throughout the entire document in the form of topic-specific guidance entries.

When assessing the burden that compliance would place on the FCDO, we also accept the following evidence of Stewart MacLeod that:

We are satisfied that there is a clear public interest in transparency and accountability of government actions and decisions. However, we accept the submissions on behalf of the FCDO that the public interest in this case is diminished by the fact that, after any appropriate redactions, the volume of information that would be suitable for disclosure would be minimal. We are also satisfied that, even if that were not the case, the public interest argument in this particular case would not outweigh the argument that the request is vexatious on the grounds on the burden that would be imposed by compliance.

We have carefully considered the Appellant’s submissions relating to the comparisons that should be drawn between the approach taken by the MoD, the Commissioner’s view of the approach taken by the Cabinet Office, and the current situation. The Appellant submits that, if the MoD are able to redact and release their version of a sensitivity manual, then the FCDO should be able to do the same. We do not find this to be a compelling submission for a number of reasons. Firstly, the MoD manual was pre-prepared for release whereas the FCDO Manual was not pre-prepared and therefore the work required prior to disclosure is not comparable. Secondly, we accept the evidence of Stewart MacLeod that the nature of the two documents are significantly different – the MoD document is focused more on process whereas the FCDO Manual directly relates to sensitivities – and therefore the comparators are not equal. Thirdly, we accept the evidence that the way in which each government department approaches the question of sensitivity reviews will vary and thereby the way in which another government department has dealt with any request made to them for such information is of very limited relevance. The relevant considerations for the Tribunal solely relate to the approach taken by the FCDO.

The Appellant referred us to the Commissioner’s Decision Notice dated 28 July 2023, reference IC-336388-V0P8, in which the Commissioner held that the Cabinet Office was not entitled to rely on section 14(1) of FOIA to refuse a request that was made for their guidance manual issued to sensitivity reviewers. In his submissions, the Appellant asserted that, if the Cabinet Office were not permitted to rely on section 14(1) in relation to a similar request, then the position should be the same for the FCDO.

We do not accept this submission. This Tribunal is evidently not bound by a Decision Notice of the Commissioner in another case and, in any event, it is apparent from the Decision Notice that an equal comparison cannot be drawn between the two documents. As previously noted, we are not assisted by the approach taken in cases involving other government departments and instead determine this case solely on its own merits.

Taking into account all of the circumstances of this case, we are satisfied that the burden of compliance on the FCDO can be properly categorised as grossly oppressive. As such, we are satisfied that the Commissioner was correct in finding that the FCDO was entitled to rely on section 14(1) of FOIA to refuse the Appellant’s request.

The Tribunal dismisses the appeal for the reasons given above.