AI v The Information Commissioner

This is an appeal against the Information Commissioner’s (“the Commissioner”) Decision Notice of 21^st October 2024 (Reference: IC-312295-K0S2), which found that the Leeds Teaching Hospitals NHS Trust (“the Trust”) was entitled to rely upon section 14(1) of the Freedom of Information Act 2000 (“FOIA”) to refuse the Appellant’s request of 9^th April 2024 on the basis that it was vexatious.

The background to this matter is that Appellant, who is a General Medical Practitioner, made a complaint about the care provided to her neurodivergent daughter by the Trust’s paediatric gastroenterology department on 23^rd February 2021. By that time, her daughter had been under the Trust’s care for a diagnosis of ulcerative colitis since October 2015, and in September 2016, following a period of treatment by way of steroids, her medication was changed to ‘azathioprine’. That medication is understood to require specialist blood monitoring to guide dosing levels and to detect haematological and liver toxicity, and that sub-therapeutic dosing risks flares of illness, with excessive azathioprine levels in the blood potentially leading to blood and liver toxicity, which can be fatal.

The issue between the Appellant and the Trust stems from the Trust asking her daughter’s General Medical Practitioner (“GP”) to arrange the necessary blood monitoring tests, which the Appellant understood could not be obtained through Primary Care. The Appellant continued to point out that this was not possible, and in January 2021, her daughter had a flare up of her condition. The Appellant contacted the Trust regarding her daughter’s condition, but was not satisfied with the care being provided to her daughter. The Appellant’s complaint followed, and a Trust doctor subsequently contacted her a day later on 24^th February 2021 when it was suggested that her daughter attend an appointment on 25^th February 2026 to further assess her and to carry out an endoscopic reassessment. The Appellant took her daughter to that appointment, and later that day the doctor contacted her daughter’s GP and reported that the Appellant had been managing the child’s illness, altering and commencing medications without specialist agreement, and stating that she had refused to bring her daughter to the hospital for endoscopic assessment and treatment. In essence, the Appellant was accused by the Trust of fabricating or inducing her daughter’s illness.

On 1^st March 2021, the same Trust doctor contacted the safeguarding team at the Trust and raised a number of concerns. The Trust subsequently submitted a safeguarding referral to Children’s Social Work Services (CSWS) in respect of the Appellant, which resulted in a child protection enquiry being opened in relation to her care for her daughter. The Appellant maintains that this referral was unwarranted and that at no stage did her daughter ever miss an appointment at the hospital or refuse treatment for her daughter. She refutes any suggestion that she has been involved in fabricating or inducing her daughter’s illness.

On 9^th April 2024, the Appellant wrote to the Trust and requested information in the following terms:

“Please advise as a foi request the month and year of the safeguarding referral made by the paediatric IBD team that you cited in a recent foi request to me, as per letter attached.”

The Trust provided its response on 30^th April 2024, stating that it was withholding the requested information under section 14(2) FOIA on the basis that the Trust had previously complied with an identical or substantially similar request.

The Appellant requested an internal review of that decision on 30^th April 2024, and the Trust responded, following that review, on 21^st May 2024, upholding its decision to withhold the information under section 14(2) FOIA.

On 9^th June 2024, the Appellant complained to the Commissioner about the way her request for information had been handled by the Trust. During the investigation by the Commissioner, the Trust changed its reliance upon section 14(2) FOIA to section 14(1) FOIA, on the basis that it was now withholding the requested information on the basis that it considered that the request was vexatious.

In his Decision Notice of 21^st October 2024, the Commissioner concluded that the Trust was entitled to reply upon section 14(1) FOIA (vexatious requests) when refusing to comply with the request. The Commissioner additionally found that the Trust had breached section 17 FOIA by failing to notify the Appellant of the correct exemption being applied when refusing the request. In summary, his conclusions, applying the four broad themes identified by the Upper Tribunal in the leading case of The Information Commissioner v Devon County Council and Dransfield [2012] UKUT 440 (AAC) to determine whether the request was vexatious, were as follows:

The Appellant submitted her appeal to the Tribunal by email on 13^th November 2024. Her grounds of appeal are summarised as follows:

In his Response to the appeal of 2^nd June 2025, the Commissioner maintained that the request was vexatious and confirmed that he stands by his Decision Notice. He confirmed that the appeal was opposed, that he did not propose to make any further written submissions or to be represented at any oral hearing.

The Appellant provided a Reply to the Commissioner’s Response on 10^th June 2025. In summary, the Appellant makes the following submissions:

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. The Upper Tribunal went on to emphasise that, when determining what constitutes a vexatious request, “There is no magic formula – all the circumstances need to be considered in reaching what is ultimately a value judgment as to whether the request in issue is vexatious in the sense of being a disproportionate, manifestly unjustified, inappropriate or improper use of FOIA.”.

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 import of section 58 is that the right of appeal to the First-tier Tribunal involves a full merits consideration of whether, on the facts and the law, the public authority’s response to the FOIA Request is in accordance with Part 1 of FOIA (Information Commissioner v Malnick and ACOBA [2018] UKUT 72 (AAC); [2018] AACR 29, at paragraphs [45]-[46] and [90].

The parties had submitted written evidence to the Tribunal prior to the hearing, comprising of an OPEN bundle of 521 pages. A CLOSED bundle was not considered necessary for the purposes of this hearing. The Tribunal has read and considered the entirety of this bundle of material.

The Appellant provided the Tribunal with a 6-page document by way of a ‘Position Statement’ on the day of the hearing. The document set out the Appellant’s main arguments and was essentially a skeleton argument, succinctly putting her submissions into a number of points, which she considered, as a person with autism and Attention Deficit Hyperactivity Disorder (ADHD), would facilitate her in making her submissions to the Tribunal. Having regard to the overriding objective of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, which is to deal with cases fairly and justly, which includes ‘avoiding unnecessary formality and seeking flexibility in the proceedings’, and ensuring ‘so far as practicable, that the parties are able to participate fully in the proceedings’, the Tribunal permitted the Appellant to rely upon this document at the hearing.

The issue to be determined by this Tribunal is whether the Commissioner was wrong in law when he decided that the Trust was entitled to rely upon section 14(1) FOIA to refuse the request of 9^th April 2024, or alternatively, whether the Commissioner ought to have exercised his discretion differently when reaching the conclusion that the request was vexatious.

The hearing took place in person at Leeds Employment Tribunal on 12^th March 2026, with only the Appellant in attendance. The Commissioner had confirmed in his Response to the appeal that he did not intend to be represented at the oral hearing and would rely upon the contents of his Decision Notice.

In her evidence, the Appellant clarified that her request of 9^th April 2024 was submitted to the Trust when she found out that it had made another safeguarding referral in respect of another child. That referral appeared to the Appellant to be similar in nature to the referral made in respect of her own daughter, and she sought to obtain further information about that matter. The Appellant’s request is set out again below for convenience:

“Please advise as a foi request the month and year of the safeguarding referral made by the paediatric IBD team that you cited in a recent foi request to me, as per letter attached.”

The Appellant was aware of a number of Care Quality Commission reports in relation to the Trust which had cited problems with safeguarding children and other issues, including in relation to the lack of doctors for resuscitation, and she had therefore made enquiries about whether all professionals within the Inflammatory Bowel Disease (IBD) and Safeguarding teams were compliant with mandatory training. She received a response in relation to the Safeguarding team, but the Trust refused to answer this request regarding the IBD team. Having found about about this other instance of a safeguarding referral, which was understood to relate to another neurodivergent family, she told the Tribunal that she was concerned with the processes involved and how clinicians could seek to exclude the family from any discussion. She considered that there was a strong public interest in bringing these matters into the fore. She maintained that the hospital had never sat down with her to discuss the safeguarding referral it made about her child. She explained that the hospital clinician involved had been advised to engage with the Appellant about the referral, but that the Trust took the decision not to do this.

The Appellant directed the Tribunal to page 53 of the bundle, where she had set out a table which detailed the dates of her requests for information and any responses which were forthcoming. She explained that prior to the request of 9^th April 2024, all of her requests had been responded to by the Trust, and they had not been treated as vexatious. She expanded upon this by stating that she actually made three requests on 9^th April 2024 (the responses to these requests were set out at pages 82 to 87 of the bundle). All three of these requests were refused under section 14(2) FOIA, on the basis that they were repeated requests, but only this request has been dealt with by the Commissioner in his Decision Notice of 21^st October 2024.

The Appellant went through a number of her previous information requests prior to the requests of 9^th April 2024 (as set out on page 53 of the bundle), providing the following explanations concerning three of those requests:

The Appellant explained that the impact of the Trust’s false allegation of fabricating or inducing the illness of her daughter has had a significant negative impact upon herself and her family. She confirmed that her daughter has not been under the care of the Trust since April 2021.

In considering whether this particular information request of 9^th April 2024 was vexatious, The Tribunal must consider the non-exhaustive four broad themes identified in Dransfield. However, a holistic approach is needed in the assessment, and as the Court of Appeal in Dransfield recognised, vexatiousness requires is a high standard to reach, and it must be satisfied before a request may be deemed vexatious.

The Commissioner, in this instance, recognised (at paragraph 31 of the Decision Notice) that “the original reason for the complainant’s requests to the Trust, and they ongoing persistence in continuing to make requests, has a serious purpose and motive.”. The Tribunal agrees with these aspects of the Commissioner’s decision, in that the Appellant’s motive for embarking on this process is to obtain information which she considers is of public interest, and which she believes should be in the public domain. Her motive for this is that she believes that she and her daughter have been treated unfairly as a consequence of raising a number of concerns about the way in which the Trust approached her daughter’s care, specifically in relation to the administering of azathioprine and the necessary blood monitoring which a GP is not ordinarily qualified to conduct. Given that azathioprine may lead to a rise in blood and liver toxicity, which could lead to death if that were to go unchecked, it is perhaps unsurprising that the Appellant, who is the mother of the child concerned, has taken issue with the hospital’s repeated instructions that a GP should conduct her child’s blood monitoring. Her pursuit of information is linked to this issue and safeguarding referral made following her complaints to the Trust about her daughter’s care. Her concerns therefore relate to patient safety and the competence of medical practitioners within the Trust’s IBD team. The Tribunal is satisfied that the motive of the Appellant it to obtain information which may expose bad practice on the part of the Trust and/or it may demonstrate that the referral was made in bad faith or that it was made erroneously, and that there is a value or serious purpose in this information being made publicly available.

The initial stance of the Trust was that it considered that it had responded to the same requests a number of time and it therefore refused to comply with the request under section 14(2) FOIA. However, from the information provided to the Tribunal, it appears that the majority of those requests before 9^th April 2024 were narrow in scope and were nonetheless responded to by the Trust. The request which forms the subject matter of this appeal was equally narrow in scope, seeking a month and year that a specific safeguarding referral was made in relation to another child. It does not appear to this Tribunal, based upon the information before it, that this request had previously been made or responded to on an earlier occasion. Nevertheless, the Trust subsequently changed its position, as it is entitled to do, and refused the request under section 14(1) FOIA on the basis that the request was vexatious. In recognising that the “language used in the request itself is not abusive.”, the Commissioner nonetheless went on to consider the burden placed upon the Trust and whether any harassment or distress was caused to the Trust’s staff, concluding that the Trust had attempted to provide responses to the Appellant’s previous requests, and that the Appellant was now trying to reopen matters that have previously been addressed. The Commissioner additionally concluded that he could “understand that the volume, frequency and subject matter of the [Appellant’s] requests could be seen to cause distress to staff dealing with the requests under a ranged of access regimes.”. His overall conclusion was that the request was vexatious.

The Tribunal has had the benefit of hearing from the Appellant in person and has been provided with an explanation in relation to each of the requests she made prior to the request being considered presently. The Tribunal does not agree with the Commissioner’s conclusion that this request, which was targeted and narrow in scope, would place an undue burden upon the Trust or that it would cause distress to the staff dealing with the request. Each of the previous requests asked for specific information, guided by the Appellant’s own medical training and research, and as the Commissioner recognised, there was no sign of abusive, aggressive or accusatory language, which sometimes accompanies requests for information, and may well amount to harassment or distress in some circumstances. The Tribunal does not find that this request was a disproportionate, manifestly unjustified, inappropriate or improper use of FOIA, and it was consequently not vexatious. The very purpose of FOIA is to promote transparency and accountability in public authorities by granting the public the right to access information held by such organisations.

The appeal is allowed.