Case Reference: FT/EA/2024/0471
Information Rights
Decided without a hearing
Before
JUDGE HAZEL OLIVER
JUDGE JAMES ARMSTRONG-HOLMES
MEMBER NAOMI MATTHEWS
Between
AC
Appellant
and
INFORMATION COMMISSIONER
Respondent
ORDERS
1. Pursuant to rule 14(1) no person shall disclose or publish any matter likely to lead members of the public (that is any person who is not a party to this case, and/or authorised to act for the Respondent and/or a representative of either party in these proceedings and/or the public authority (Folkestone School for Girls)) to identify AC, a person whom the Tribunal considers should not be identified.
2. Pursuant to Rule 14(1) there shall be no disclosure to a third party (apart from Folkestone School for Girls) of information within the bundle of documents used in this appeal which would or would be likely to identify AC or the third party whose personal information is protected by these Orders.
Decision: The appeal is Allowed
Substituted Decision Notice: Folkestone School for Girls is to provide a fresh response to the Appellant’s request for information dated 1 July 2024 which does not rely on section 14 of the Freedom of Information Act 2000. They are to do so within 30 working days of the date of receipt of this decision.
Failure to comply may result in the Tribunal making written certification of this fact to the Upper Tribunal, in accordance with rule 7A of the First-tier Tribunal (General Regulatory Chamber) Rules, and may be dealt with as a contempt of court.
REASONS
Anonymisation and closed annex
The underlying facts of the appeal involve a child and sensitive personal health information about that child. Their circumstances give rise to a risk of potential harm if they were to be identified. We have therefore made the orders set out above, for reasons set out in a separate case management order. We have also included a closed annex to this decision, which discusses on a confidential basis some background to the reasons for the decision for the benefit of the parties and the public authority.
Background to Appeal
This appeal is against a decision of the Information Commissioner (the “Commissioner”) dated 8 November 2024 (IC-319660-J8T1, the “Decision Notice”). The appeal relates to the application of the Freedom of Information Act 2000 (“FOIA”). It concerns information about the legal costs of a First-Tier Tribunal hearing requested from the Folkestone School for Girls (the “School”).
The parties opted for paper determination of the appeal. The Tribunal is satisfied that it can properly determine the issues without a hearing within rule 32(1)(b) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (as amended).
On 1 July 2024, the Appellant wrote to the School and requested the following information (the “Request”):
“Please provide the following details regarding the school’s expenditure related to the recent case brought to the First-tier Tribunal (Special Educational Needs and Disability) in which the school was found to have breached the Equality Act 2010:
- The total amount spent on all costs associated with this claim, specifically with Freeths LLP for the 2022/23 and 2023/24 academic years. This includes, but is not limited to, legal fee, administrative costs, and any other related expenses.
- The total amount spent on all other costs associated with this claim, including but not limited to expenditures on other law firms and any other related expenses for the 2022/23 and 2023/24 academic years.
For clarity I am seeking the total expenditure figures for both academic years, specifically identifying the expenditures with Freeths LLP and other law firms separately.”
The School responded on 3 July 2024 and refused the request as vexatious under section 14 FOIA. They described the reason as “the motive of this request, the value of this information being shared and the disproportionate level of distress caused”. This position was upheld on internal review on 5 July 2024, in an email which said, “The ICO provided clear guidance on which sections / exemptions we could refuse this FOI request under, with Section 14 being the most appropriate…We do not feel further information is required at this stage”.
The Appellant complained to the Commissioner on 5 July 2024. The Commissioner decided that the School was entitled to refuse the request under section 14, after taking into account the background history to the Request and information from the School about the number of requests, complaints and allegations from the Appellant. The Commissioner concluded, “The complainant’s continuing behaviour is now placing an unjustifiable burden on the School and is causing disruption, irritation and distress. It is not an appropriate or justifiable use of FOIA.”
The Appeal and Responses
The Appellant appealed on 4 December 2024. His grounds of appeal are:
The Decision Notice contains material factual errors.
The School did not provide detail on the rationale for the decision when they refused to reply to the Request, but have shared information and rationale with the Commissioner which were not shared with him.
He raised complaints to address genuine and significant issues, as demonstrated by their serious consideration by multiple regulatory bodies. Legitimate concerns with a serious purpose should not be mischaracterised as vexatious.
He has not made any other FOIA requests to the School, and the refusal blurs the line between the request itself and the individual who requests it.
The Appellant provided separate detailed grounds of appeal which specifically address the Commissioner’s decision, which we discuss below.
The Commissioner provided a brief response which maintains that the Decision Notice was correct.
Applicable law
The relevant provisions of FOIA are as follows.
1 General right of access to information held by public authorities.
Any person making a request for information to a public authority is entitled—
to be informed in writing by the public authority whether it holds information of the description specified in the request, and
if that is the case, to have that information communicated to him.
……
Vexatious or repeated requests.
Section 1(1) does not oblige a public authority to comply with a request for information if the request is vexatious.
…….
58 Determination of appeals
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.
There is no further guidance on the meaning of “vexatious” in the legislation. The leading guidance is contained in the Upper Tribunal (“UT”) decision in Information Commissioner v Dransfield [2012] UKUT 440 (AAC), as upheld and clarified in the Court of Appeal (“CA”) in Dransfield v Information Commissioner and another & Craven v Information Commissioner and another [2015] EWCA Civ 454 (CA).
As noted by Arden LJ in her judgment in the CA 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).
Judge Wikeley’s decision in the UT Dransfield sets out more detailed guidance that was not challenged in the CA. The ultimate question is, “is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA?” (para 43). It is important to adopt a “holistic and broad” approach, emphasising “manifest unreasonableness, irresponsibility and, especially where there is a previous course of dealings, the lack of proportionality that typically characterise vexatious requests.” (para 45). Arden LJ in the CA also emphasised that a “rounded approach” is required (para 69), and all evidence which may shed light on whether a request is vexatious should be considered.
The UT set out four non-exhaustive broad issues which can be helpful in assessing whether a request is vexatious:
The burden imposed on the public authority by the request. This may be inextricably linked with the previous course of dealings between the parties. “…the context and history of the previous 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 it is properly to be characterised as vexatious. In particular, the number, breadth, pattern and duration of previous requests may be a telling factor.” (para 29).
The motive of the requester. Although FOIA is motive-blind, “what may seem like an entirely reasonable and benign request may be found to be vexatious in the wider context of the course of dealings between the individual and the relevant public authority.” (para 34).
The value or serious purpose. Lack of objective value cannot provide a basis for refusal on its own, but is part of the balancing exercise – “does the request have a value or serious purpose in terms of the objective public interest in the information sought?” (para 38).
Any harassment of, or distress caused to, the public authority’s staff. This is not necessary in order for a request to be vexatious, but “vexatiousness may be evidenced by obsessive conduct that harasses or distresses staff, uses intemperate language, makes wide-ranging and unsubstantiated allegations of criminal behaviour or is in any other respects extremely offensive.” (para 39).
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” (UT para 10), subject always to the high standard of vexatiousness being met.
Issues and evidence
The issue is whether the School was entitled to refuse to respond to the Request because it is vexatious.
By way of evidence and submissions we had an agreed bundle of open documents, which we have read and taken into account.
Discussion and Conclusions
In accordance with section 58 of FOIA, our role is to consider whether the Commissioner’s Decision Notice was in accordance with the law. As set out in section 58(2), we may review any finding of fact on which the Decision Notice was based. This means that we can review all of the evidence provided to us and make our own decision.
We have considered the questions set out in Dransfield.
The burden imposed on the public authority by the request. The Request itself is focussed and not unduly burdensome to answer. However, a single request can be burdensome in light of the previous course of dealings between the parties, particularly the number and nature of previous FOIA requests from the same individual. It is notable in this case that the Appellant says the Request is the only request that he has submitted to the School under FOIA.
The Commissioner’s decision relies on information from the School that the Appellant did not see during the Commissioner’s investigation. The Commissioner says that the School has stressed that this is one of many requests and communications on the same subject. As set out in more detail in the Confidential Annex, the background to the Request stems from one particular incident. There have been a number of complaints to different bodies. However, as the Appellant points out, a number of these were resolved in the Appellant’s favour – the First-Tier Tribunal found there had been discrimination, a complaint to the Department for Education (“DfE”) was partly upheld, and the Commissioner upheld a complaint about how a subject access request had been dealt with. The Decision Notice (paragraph 21) is incorrect that a complaint to the DfE did not find wrongdoing. The Decision Notice (paragraph 23) is correct that no further action was taken by the DfE, but this was due to timing rather than the complaint not being upheld (as explained further in the Confidential Annex).
The Commissioner’s decision also repeats information from the School that they had continued to receive emails and complaints on the same subject, with approximately 270 emails in a few months. However, there is no evidence to show that these emails were from or instigated by the Appellant. The Appellant says he had only sent a total of 13 emails to the School’s email address. He says that there may have been emails from regulatory bodies, but if so they are part of a legitimate process to investigate serious issues.
The Commissioner’s decision also records that the School states it has spent significant amounts of time responding to the various requests, complaints and allegations from the Appellant. We note again that there has only actually been one request under FOIA. The School said to the Commissioner that some 60 working days had been lost responding to these matters. We appreciate that the full chain of events set out in the Confidential Annex would have involved significant work for the School.
The motive of the requester. The Appellant does not have an impermissible motive behind the Request, and this is not suggested by the Commissioner. The Appellant says that his purpose is not to directly reference the School, but to “use the information to focus minds of all secondary schools on the significant cost of getting issues such as this wrong”. The School suggested in its response to the Commissioner that this was a personal vendetta. However, having considered the reasons given for requesting the information (including the additional information set out in the Confidential Annex), we do not find that the Request was motivated by a personal vendetta against the School or any particular individual.
The value or serious purpose. In their response to the Commissioner, the School suggests that the Request lacks any serious purpose or value because the relevant issue has been adjudicated upon twice. The Commissioner’s decision finds that there is some value to the Request - understanding what public funds were used on legal fees by the School in relation to the First-Tier Tribunal would be of interest in understanding how money is spent. The Appellant’s position is that there is significant public interest in how public authority school funds are used to defend disability discrimination cases. We agree that this is an issue of public interest, and so the Request does have some value or serious purpose.
Any harassment of, or distress caused to, the public authority’s staff. The Commissioner’s decision notes that issues have been ongoing since January 2023 and have taken a toll on staff at the School, particularly the headteacher while awaiting the outcome of a Teaching Regulation Agency referral. We note that this was accepted for investigation, but closed without further action. We appreciate that this would have been stressful for the headteacher, and that the wider chain of events (as set out in more detail in the Confidential Annex) would have been stressful for staff at the School. However, this isolated FOIA request is not targeted at any particular individual, and we do not find that it constitutes harassment.
Overall, it is relevant that the Commissioner’s decision was based on information from the School that was not supported by evidence or checked with the Claimant. There is no obligation on the Commissioner to check information with a complainant before making his decision (and the procedure followed by the Commissioner is outside the Tribunal’s remit). However, in this case we had detailed appeal grounds from the Appellant which challenged the version of events from the School and provided supporting evidence. The Commissioner’s response did not address these grounds of appeal in any detail. We have therefore accepted the Appellant’s version of events where this conflicts with the information in the Commissioner’s decision.
We have considered the above matters carefully. Having done so, we do not find that the Request meets the high standard of vexatiousness in all the circumstances. This single request is not a “manifestly unjustified, inappropriate or improper use of FOIA”. We are mindful of the comments by Arden J in Dransfield that the starting point is whether there is “no reasonable foundation for thinking that the information sought would be of value to the requester, or to the public or any section of the public”. The Commissioner says he does not consider that the answer to the Request will provide any satisfactory end point for the Claimant. It is certainly possible that future requests on the same or similar topics may reach the point where those requests become vexatious. However, this single FOIA request had not reached that point, and we have found that it does have some value and serious purpose. We also note that the Appellant’s appeal grounds say, “we can categorically state we intend to make no further complaints or referrals to regulatory bodies regarding this issue”.
We therefore find that the School was not entitled to refuse to respond to the Request because it is vexatious. We uphold the appeal.
The Appellant’s desired outcome is for the Commissioner’s decision to be set aside and the information provided as originally requested. The Commissioner says that if the appeal succeeds the Tribunal should order steps obliging the School to issue a fresh response that does not rely on section 14(1) FOIA. We agree with the Commissioner that this is the correct approach. Where a public authority has initially refused a request because it is vexatious, they should still be permitted to rely on any exemptions that might apply to some or all of the requested information. It would not be appropriate for the Tribunal to simply order that the information is disclosed. We set this out in the Substituted Decision Notice above.
The Appeal also asks for “false and misleading information” in the Commissioner’s decision to be removed from the public domain, and for the Commissioner to consider their process, procedural fairness and how incorrect information was allowed to appear in the public domain. These are not matters that the Tribunal can deal with and so we have not addressed this any further in our decision.
Signed: Judge Hazel Oliver Date:30 October 2025