G Boswell v The Information commissioner & Anor

This decision concerns two requests: DPR 189 made on 27 May 2022 and DPR 190 made on 1 June 2022.

On 27 May 2022 Mr Boswell made request DPR 189 which was for:

“The video, the minutes, and the attendee list of the “closed session” of the BAME Network which was convened to discuss my open email to the ONS, sent on the 13th of July 2020. I presume the session was held that Monday or Tuesday, but it could have been any time that week. I would also be interested in any follow-up sessions.”

On 1 June 2022 Mr Boswell made request DPR 190 which was for:

“Copies of every email received by Iain Bell (at any of his email addresses, including those of his secretaries) concerning my open reply to his “Black Lives Matter!” email. My email was sent on the 13th of July 2020, so the emails to Iain will begin at this point. I would also be interested in any of Iain’s replies to these messages, and any ensuing correspondence. I hope I am entitled to see names, given that these emails concern me directly.”

Request DPR 188, made on 25 May 2022, and which is not the subject of this decision, was for:

“Copies of every email received by Iain Bell (at any of his email addresses, including those of his secretaries) in response to his “Black Lives Matter!” email of the 8th of June 2020. I would also be interested in any of Iain’s replies to these messages, and any ensuing correspondence.”

On 30 May 2022 ONS wrote to Mr. Boswell referring him to the response to the MC FOI request (see factual background above) and stating that it maintained its position in relation to those emails.

On 6 July 2022 ONS issued a joint response to the three FOIA and subject access requests made on 25 and 27 May and 1 June 2022. The ONSrefused what it termed ‘the FOI elements’ of the requests under section 14(1) FOIA (vexatiousness). It refused the requests where Mr Boswell asked for information about himself on the basis that they were manifestly unfounded and excessive under the Data Protection Act 2018.

The ONS upheld its position on internal review on 7 September 2022.

The summary of the decision notice and the submissions from the initial decision, is adopted in full, and repeated here for the benefit of those reading the decision who are not familiar with the proceedings.

In a decision notice dated 12 February 2023 the Commissioner decided that the elements of the three requests that were covered by FOIA were vexatious requests under section 14 FOIA.

The Commissioner stated that at the time of the requests Mr. Boswell had been in dispute with ONS about a particular matter for approximately two years. The Commissioner found that while the original requests may have had a serious value and purpose, that value and purpose had diminished two years later. The Commissioner noted that ONS had confirmed to Mr. Boswell that he did not need the information he was seeking in order to progress a complaint with ONS.

The Commissioner found that by May/June 2022 Mr. Boswell appeared to be mis-using FOIA to pursue a grievance against ONS and to progress matters that are more appropriately dealt with through other channels. The Commissioner found that Mr. Boswell’s requests – including earlier requests and the requests sent in succession in this case – and related past behaviours – such as attempting to acquire redacted information (individuals’ names) from other parts of the organisation - were not those of an individual using FOIA reasonably and responsibly. The Commissioner considered that, in view of the background and circumstances, Mr. Boswell’s requests would be likely to cause ONS staff to feel distressed and harassed. The Commissioner found that ONS’ evidence suggested that, as well as generating new requests from Mr. Boswell, responding to the three requests would also cause a burden to ONS.

Since the Commissioner considered that the purpose and value of the requests was minimal, he was satisfied that that burden would be wholly disproportionate. The Commissioner decided that ONS was entitled to refuse the requests under section 14(1) of FOIA.

The grounds of appeal, as amended and as they relate to DPR 189 and DPR 190, are:

The statements of case are summarised in detail in the initial decision.

The ONS is neutral on whether or not DPR-189 and 190 are vexatious

Section 1 FOIA provides that:

“(1)Any person making a request for information to a public authority is entitled—

(a)to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b)if that is the case, to have that information communicated to him.”

Section 8 provides:

“8 Request for information.

(1)

In this Act any reference to a “request for information” is a reference to such a request which—

(a)

is in writing,

(b)

states the name of the applicant and an address for correspondence, and

(c)

describes the information requested.”

Guidance on applying section 14 is given in the decisions of the Upper Tribunal and the Court of Appeal in Dransfield ([2012] UKUT 440 (AAC) and [2015] EWCA Civ 454). The tribunal has adapted the following summary of the principles in Dransfield from the judgment of the Upper Tribunal in CP v Information Commissioner [2016] UKUT 427 (AAC).

The Upper Tribunal 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’ (para 72 of the CA judgment).

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 (para 24). 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 Commissioner’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 the Upper Tribunal 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 are not exhaustive and are not intended to create a formulaic checklist.

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. 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.

In the Court of Appeal in Dransfield Arden LJ gave some additional guidance in paragraph 68:

“In my judgment the Upper Tribunal was right not to attempt to provide any comprehensive or exhaustive definition. It would be better to allow the meaning of the phrase to be winnowed out in cases that arise. However, for my own part, in the context of FOIA, I consider that the emphasis should be on an objective standard and that 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. If it happens that a relevant motive can be discerned with a sufficient degree of assurance, it may be evidence from which vexatiousness can be inferred. If a requester pursues his rights against an authority out of vengeance for some other decision of its, it may be said that his actions were improperly motivated but it may also be that his request was without any reasonable foundation. But this could not be said, however vengeful the requester, if the request was aimed at the disclosure of important information which ought to be made publicly available...”

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.

The lack of a reasonable foundation to a request was only the starting point to an analysis which must consider all the relevant circumstances. Public interest cannot act as a ‘trump card’. 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 tribunal’s remit is governed by section 58 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 exercising discretion, whether he should 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.

We had before us and took account of where relevant:

Mr. Boswell provided a detailed skeleton argument on the morning of the hearing which the tribunal adjourned to read. It set out his submissions in detail. He fleshed out those submissions in oral argument. We have taken account of those arguments and include them, where appropriate, in our discussion and conclusions below.

In written submissions dated 4 June 2025 the Commissioner noted that section 8 of FOIA defines a valid request for information as:

“(a)

is in writing,

(b)

states the name of the applicant and an address for correspondence, and

(c)

describes the information requested.”

The Commissioner submitted that a requestor is not expected to state that a request is being made under a particular access regime, and in any event, while Mr Boswell specified that he considered that the requests should be dealt with as subject access requests, he included the following caveat:

“If Legal Services feels that particular elements of this request could only be released under FOI, please let me know as soon as possible (i.e. at the beginning of the process) and I will submit that FOI in addition.”

The Commissioner submitted that FOIA provided a mechanism for responding to a request for a requester’s own personal data (section 40 FOIA).

The Commissioner submitted that section 14 can be relied on before a public authority has determined what, if any, information is held within the scope of a request. The Commissioner said that the decision notice upheld the application of section 14(1) FOIA by ONS to “the elements of the complainant’s three requests for information that are covered by FOIA”. The Commissioner submitted that all elements of the requests are valid under FOIA, because even where a request requires information which may constitute the Appellant’s own personal data it can still be processed as a request under FOIA (as well as the DPA).

The ONS agreed with the Commissioner’s submissions on this issue.

Mr Boswell submitted that ONS had inappropriately misclassified his subject access requests as FOI requests in order to thwart them, because ONS was engaged in a cover-up and ‘in the grip of a cloud of beliefs associated with Critical Race Theory’. He submitted that the ONS wanted to be able to classify his requests as FOIA requests so that they could be refused as vexatious.

We held a closed session but that dealt only with evidence and submissions in FT/EA/2025/0288.

The interpretation section of FOIA states that a ‘request for information’ has the definition given by section 8.

Section 8 provides that any reference in FOIA to a “request for information” is a reference to ‘such a request’ which is in writing, states the name of the applicant and an address for correspondence, and describes the information requested.

Although section 8 specifies when a request for information will be covered by FOIA, it does not define the phrase any further. Accordingly that phrase has to be construed in accordance with the normal principles of statutory interpretation, namely that the meaning of the words used must be ascertained in the light of their context and the purpose of the statutory provision.

Mr. Boswell made submissions that ‘request for information’ should not be construed so broadly that it would cover any internal and informal requests made between colleagues or different departments during the day to day activities of a public authority.

It is not necessary in this appeal to consider the outer boundaries of a ‘request for information’. In DPR 189 and DPR 190 the appellant made a formal request for information. He made the request to legal services. Each request began with the sentence ‘This is my [third/fourth] request for information’. Mr. Boswell then goes on to request information.

It is clear, by any sensible definition of the phrase request for information, construed in the light of the context and purpose of the statutory provision, that DPR 189 and DPR 190 are requests for information.

The real issue in this appeal is whether the requests for information fall outside FOIA because (a) Mr. Boswell insisted in the request that each request should be treated as a subject access request and not a freedom of information request and/or (b) because the request was, in Mr. Boswell’s submission, a request for his own data.

The answer to both those questions is no. If a request for information is made that satisfies the criteria in section 8, a public authority has to either supply the information (section 1(5)) or comply with its obligations under section 1(1)(a), subject to any other relevant provisions in FOIA. The fact that the requestor has asked or insisted that the request is not dealt with under FOIA does not relieve the authority of those obligations.

Even if the information requested consists solely of the requestor’s personal data, the authority is not relieved of its obligations under FOIA. The information is exempt under section 40(1) and the public authority is entitled to refuse to confirm or deny if the information is held under section 40(5A), but the authority remains obliged to issue a refusal notice under section 17. The Commissioner has stated in his guidance that he does not expect public authorities to do this, but the obligation under section 17 remains. A request for the requestor’s personal data remains a request for information under FOIA.

Mr Boswell made submissions to the effect that the application of both regimes could be manipulated by a public authority to reduce the amount of information made available. Whether or not this is the case, it cannot alter the effect of the provisions of FOIA dealt with above.

For those reasons, we find that DPR 189 and 190 were requests for information under FOIA, whether or not they included or consisted entirely of Mr Boswell’s personal data.

Whilst Mr Boswell presented additional evidence and further submissions it was not necessary for us to make additional findings in order to determine this issue.

There was no appeal to the Upper Tribunal against our conclusions in the earlier decision on the application of section 14 to DPR 188, and we repeat and adopt those in full in so far as they are also relevant to DPR 189 and 190 as follows. Where there is reference to Ms Ivimy’s submissions in our discussion and conclusions below, that is a reference to her submissions at the previous hearing as summarised in the initial decision.

“Preliminary observations

217.

In Kennedy v Charity Commission [2014] 2 WLR 808, Lord Sumption, with whom Lord Neuberger and Lord Clarke agreed, said as follows, at para 153:

“The Freedom of Information Act 2000 … introduced a new regime governing the disclosure of information held by public authorities. It created a prima facie right to the disclosure of all such information, save in so far as that right was qualified by the terms of the Act or the information in question was exempt. The qualifications and exemptions embody a careful balance between the public interest considerations militating for and against disclosure. The Act contains an administrative framework for striking that balance in cases where it is not determined by the Act itself. The whole scheme operates under judicial supervision, through a system of statutory appeals.”

218.

It is important to remind ourselves of those observations. FOIA creates prima facieright to disclosure of information held by public authorities, save in so far as that right is qualified by the terms of FOIA or the information in question is exempt. Further, we remind ourselves that the qualifications and exemptions embody a careful balance between the public interest considerations militating for and against disclosure.

219.

The purpose of section 14 is “to protect the resources (in the broadest sense of that word) of the authority from being squandered on disproportionate use of FOIA.” (UT, Dransfield, para 10). In order to achieve this purpose, as the Court of Appeal noted (CA, Dransfield, para 68),Parliament has chosen to use a strong word, and therefore the hurdle of satisfying it is high.

220.

Section 14 must not be interpreted in a way that in effect introduces a ‘public interest’ threshold that all requestors have to pass. If no exemption is engaged, there is a right to disclosure of information held by public authorities whether or not there is any public interest in disclosure.

221.

We note what the Upper Tribunal said in Dr Yeong-Ah Soh v Information Commissioner and Imperial College London [2016] UKUT 0249 (AAC) [79] and [80] (Soh):

“79.

The FTT’s reasons conclude that “at the time the requests were made they were vexatious in their content by reason of the burden on the [second respondent] ... and the distress to the second mentor ...; the benefit sought from the disclosure was [the appellant’s] private interest ... not the public interest. It was an inappropriate use of the FOIA and therefore vexatious”. From these words, I find it inescapable that, at the least, a factor in the FTT’s decision was the perceived lack of any public interest in the appellant’s request for information.

80.

However, it seems to me that the real issue is whether there was a value or a serious purpose to the appellant’s request. A request can have a value or a serious purpose while serving an entirely private interest. Judge Wikeley referred to objective public interest. He later stated at paragraph 14 that “of course, a lack of apparent objective value cannot alone provide a basis for refusal under section 14”. He continued, “..., unless there are other factors present which raise the question of vexatiousness”.

81.

It appears to me that the FTT would err in law if it considered that the request was vexatious for lacking public interest alone.”

222.

Nor should section 14 be interpreted in such a way that it operates as a ‘catch all’ exemption. It should not be used to avoid the need to consider whether the authority is entitled to rely on an exemption to withhold the information, even where it might appear obvious to the authority, the Commissioner or to the tribunal that the requested information ought to be withheld either in the public interest or for some other reason. Parliament has chosen which exemptions to include and determined how those exemptions operate in order to embody the ‘careful balance’ identified above. Section 14 is not designed to avoid the need to consider the application of individual exemptions.

…

Application of section 14

224.

Although the four broad issues or themes identified by the Upper Tribunal in Dransfield are not exhaustive and are not intended to create a formulaic checklist, they are a helpful tool to structure our discussion, although some elements do not fit neatly under one heading. In adopting this structure, we have taken a holistic approach, and we bear in mind that we are considering whether or not the request was vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA.

Burden

225.

In assessing burden the number, breadth, pattern and duration of FOIA requests are relevant to the question of misuse of FOIA by an individual. Related correspondence can also be taken into account. In Soh, the Upper Tribunal stated:

“94.

The issue of burden was addressed by Judge Wikeley in Dransfield as involving questions as to the number, breadth, pattern and duration of FOIA requests in terms of the misuse of the FOIA by an individual. However, it is clear that related correspondence can also be considered.

95.

… the Court of Appeal has clearly warned against applying bright line rules as to what evidence should be taken into account when addressing the question of whether a request is vexatious. A rounded approach is required. Thus, I consider that a DPA request can properly be addressed in determining whether a FOIA request is vexatious, to the extent that it is relevant. I accept the general proposition that the decision maker should consider all the circumstances in order to reach a balanced conclusion as to whether a request is vexatious, without artificially excluding particular types of evidence.”

226.

Mr Boswell submitted that certain requests should not be taken into account when assessing burden because they were not made under FOIA, but we are entitled to take account of any related correspondence.

227.

We accept that the ONS as an organisation was also carrying the significant burden of responding to the related grievance. That grievance was partially upheld, and for the purposes of assessing the vexatiousness of the request in issue we do not place significant weight on the separate burden which arose out of investigating and responding to the grievance.

228.

There is a significant gap in time between the SAR made in October 2020 and the next request in December 2021. Ms Ivimy in her submissions focussed on the burden on ONS from December 2021 and in our view it is right to focus primarily on the burden from December 2021. We do not place significant weight on any burden prior to December 2021.

229.

We do accept that the December 2021 request, which asked for copies of the Yammer threads removed by the ONS, whether responded to under FOIA or otherwise, carried a significant burden because of the technical difficulties in retrieving deleted threads.

230.

It is not clear what the ONS process, if any, is for individuals wanting to request information to be disclosed to them individually in order to consider whether to make a complaint or as supporting evidence in a complaint already made.

231.

It is unclear to us if HR or those involved in the grievance processes appreciate that not all requests for information are FOIA requests, and that just because a FOIA request is refused, that does not mean that the individual is not entitled to see that information as part of the grievance process. The question of whether an individual should be provided with evidence or information as part of a grievance process is very different to the question of whether information should be disclosed to the world.

232.

To give an example, the tribunal has considered the hypothetical situation where male employees had discussed a female employee in posts on Yammer. Yammer is not anonymous and can be viewed by all employees. We assume that a number of those individuals made remarks that were offensive and sexual in nature. We assume that those posts had then been deleted from Yammer by the ONS.

233.

It seems bizarre to us that the woman in question, in order to consider whether she wanted to make a formal complaint of sexual harassment and in order to decide against whom that compliant should be made, should have to have her request to HR treated as a FOIA request.

234.

This requires her, in many circumstances, to justify why this information should be provided to the world at large. It requires the ONS, in many circumstances, to consider the impact on the individuals accused of harassment of having their comments released to the world. This latter aspect appears to us to carry a risk of Legal Services becoming unnecessarily entangled in considerations of the merits of the harassment claim before that matter has been properly determined.

235.

Further the individual potentially faces the argument that FOIA is not intended to be used for ‘private interests’ being used by the employer, as ONS does in this appeal, to submit that there is no relevant value in the request for the purpose of considering vexatiousness.

236.

Further, if such an individual had already made a complaint and had reasonable grounds for suspecting that there was further evidence in, for example, private emails between those individuals, it is not clear to us whether there is any mechanism for a request for that potential evidence to be disclosed to the individual to be considered without being redirected into FOIA or DPA with the consequences set out in the preceding paragraph.

237.

Mr Boswell’s original request for the deleted Yammer threads was made a matter of weeks after their deletion on 27 July 2020. The request was made as a request to the Head of Internal Communications, Adam Wheeler, for them to be disclosed to Mr. Boswell personally so that he could decide whether to make a complaint, because, he stated, they contained some serious and, in Mr Boswell’s view, bullying accusations.

238.

Mr Wheeler took some advice and his understanding was that Mr Boswell was not ‘entitled directly’ to the comments of other people, but a request could be made through HR. Nobody ever replied to Mr Boswell or informed him of this.

239.

Mr Boswell next requested the Yammer threads from HR, specifically for the purposes of his grievance/complaints in December 2021. This request was headed ‘Request for information from HR specifically’ and began with the sentence ‘Can I please get some answers to the following four questions ASAP, or at least a week before my first Resolution Meeting, in order to give me time to prepare’. This was treated as an FOI request.

240.

In our view at least some of the burden of the FOI request in December 2021 might have been avoidable if someone had responded to Mr Boswell in July 2020 and if there had been a clear mechanism for requesting information to be disclosed to an individual for the purposes of grievances/complaints as discussed above.

241.

Further, when Mr Boswell, having been provided with the Yammer threads with the names redacted under FOIA, approached Mr Wheeler again for the names of those individuals so that he could consider making a complaint, we do not see that as unreasonable persistence. Again this was redirected to Legal Services whose reply was, we think, in the email of 19 May 2022 which stated that names were not included because disclosure under FOIA is disclosure to the public.

242.

After the December 2021 request, on 25 February 2022 Mr. Boswell made a further SAR/amendment to his previous SAR and a nine-part SAR/FOIA request in the same email. There was some burden in responding to the SAR/amendment. The nine-part request was treated as a FOIA request.

243.

We accept that there was a reasonably significant burden on the ONS arising out of the refusal of the nine-part request on the grounds that it was vexatious. First, there were a number of emails and telephone calls in which Mr. Boswell persistently challenged the response and insisted that at least some of the parts of the request should be treated as SAR requests. This included an email sent to Legal Services on 15 April 2022 with 21 detailed questions. These were responded to in detail by ONS. We do not accept that these questions were simply Mr. Boswell attempting to narrow his request.

244.

As part of these discussions with Legal Services they did invite him to resubmit a narrowed request or requests. The four requests sent on 24, 25 and 27 May and 1 June 2022 were, we accept, Mr. Boswell’s attempt to narrow his request sent on 25 February 2022. They do, taken together, ask for less information than was requested in the February 2022 request, but there is still a burden on the ONS caused by each of those requests and exacerbated by making multiple requests at the same time.

245.

Overall we accept that by July 2022 looked at as a whole the course of dealings was placing a not insignificant burden on ONS’ resources.

246.

We have taken account of the evidence from ONS as to the likely burden of responding to the Request in issue in isolation. It is not, in our view, an excessive burden. The respondent has already located the relevant emails. If it intends to maintain its refusal to disclose under section 41 the burden is minimal. If it intends to make redactions and consider the application of section 40, we accept that there will be some burden involved, but it would not in our view be excessive or unmanageable for the ONS.

247.

The request does overlap, in part, with the MC FOI request. The overlap is limited to any private, rather than ‘reply all’, emails sent between 8 June and 13 July. We accept that Mr Boswell honestly did not appreciate that there was any overlap and so, as set out below, we do not impute any inappropriate motive or unreasonable persistence as a result of this overlap. However the overlap is also relevant in considering the burden of the request.

248.

We note that the private emails were refused, as a category, under section 41. To the extent that the ONS intend to take the same approach and apply section 41, most of the work has already been done and the burden would be minimal. To the extent that the ONS intend to take a different approach, the burden involved in this request is not increased by any overlap. Further the overlap is limited to a specific period. Any emails post-dating 13 July are outside the scope of the MC FOI request. For those reasons we do not accept that there is any significant increase in the burden of this request arising out of the overlap with the MC FOI request and there is likely to be some reduction in the burden.

249.

Further, we consider that some steps could be taken under section 16 to attempt to narrow down the request and avoid some of the consequences that the ONS are concerned about. Mr. Boswell has been clear that he is largely interested in the emails in order to test Mr. Bell’s assertion in the Your Call meeting on 2 July 2020 that he was ‘quite shocked by some responses to my email which said that there was no racism and they didn't need to educate themselves (was almost the tone)’. Mr. Boswell could be asked if he would agree to limit the request to emails up to and including 2 July 2020. This was before the reply all sent by Mr. Boswell and presumably would exclude many of the emails containing ‘personal stories’ sent to Mr. Bell.

250.

We do accept that this request was likely to carry a future burden. In the light of Mr. Boswell’s general approach we accept that he was unlikely to accept a decision to withhold information or substantial redactions without persistent challenge.

251.

Overall, we accept that the burden of this Request, looked at in the context of the whole course of dealings and the likely future burden, is reasonably significant for an organisation like the ONS.

Purpose or value

252.

Mr Boswell submits that there is a public interest in disclosure of the requested information because the public should understand the degree of support and/or criticism that this kind of politicisation of the Civil Service received within the ONS. We agree with Ms Ivimy that it is fanciful that ad hoc replies sent individually by members of staff would somehow reveal the degree of support and/or criticism within the ONS for politicisation of this sort.

253.

Although we accept that the underlying issues are of significant public interest, the initial emails, any reply all emails up to 13 July and the reading list were already in the public domain at the relevant date and have been reported in the press. We have not seen the relevant emails and it is difficult to determine to what extent there might be some additional contribution to the general public debate by the publication of these emails, but it is likely, in our view, to be limited.

254.

We do not accept Ms Ivimy’s submission that when considering vexatiousness the focus must always be on whether the information is of objective public interest. We do not agree that the question is whether the request has a value or serious purpose in terms of the objective public interest in the information. The private interests of the requestor are relevant even where they do not overlap with the public interest. There is no public interest threshold that requestors have to pass.

255.

We have already cited paragraph 79 of the Upper Tribunal decision in Soh. In that decision the Upper Tribunal makes clear that the real issue is whether there is a value or serious purpose to the request and that a request can have a value or serious purpose while serving an entirely private interest.

256.

We accept that Mr Boswell has a serious purpose in making the request. He has a private interest in the requested information. He asserts that it will be of assistance in his grievance appeal. In the letter which contains the request he states:

“I would like you to consider that the information is extremely important to my upcoming appeal meeting with Ed Humpherson, bearing as it does on the question of whether Iain Bell was receiving genuinely shocking emails, or if he himself was expressing a bigoted view towards liberal antiracists such as myself.”

257.

The respondent submitted that the information, if it would be relevant to the appeal, could be obtained in the course of the grievance proceedings by the decision maker. We note the following paragraphs from Soh:

“87.

…it is difficult to ignore the comment in the FTT’s conclusion at paragraph 30 that “it would be inappropriate for this tribunal to justify disclosure in the public interest of material for the purpose of litigation before another tribunal when that Tribunal (which is far better placed to understand the issues it needs to resolve) is in a position to make that order”. The issue for the FTT was not to consider whether it was appropriate for it to order disclosure – but whether it was an inappropriate use of the FOIA to request it. By this comment, the FTT clearly appears to make the possible availability of the requested information through the ET a factor in its decision.

88.

If it did, in my view, it was not entitled to do so. The issue before it was whether the applicant had a serious motive in requesting information. This was the assessment of the merits of her potential claim to the ET and its potential use as evidence in those proceedings. It might well have been that, upon sight of the requested information, she would have decided not to bring or to discontinue ET proceedings. The fact that she might have obtained the same material by way of an application to the ET does not diminish the seriousness of the purpose for which it was sought. In any event she had no right to the requested material through the ET proceedings, but a possibility that an employment tribunal judge might have ordered disclosure.

89.

It appears to me that, to the extent that it placed weight on this issue, the FTT has misdirected itself on the question of whether the request was vexatious for lack of serious purpose, or has alternatively taken an immaterial consideration into account.”

258.

Similarly the question for us is whether there is a serious purpose in requesting the information. As stated above it is not clear to us whether there is any mechanism for Mr Boswell to obtain the information for use in his grievance appeal, but he certainly does not have any right to that information, nor can he insist upon the decision maker requesting the information or taking the material into account. There is only a possibility that the decision maker might have obtained the information.

259.

The respondent submits in any event that this particular point has, by this stage in the grievance, become attenuated and remote. Ms Ivimy submitted that it is not the centre of the grievance and is an attempt to create a new ground of complaint against Mr. Bell. She submitted that it is at the furthest reaches of what is an appropriate complaint to be making as part of the grievance and notes that the appeal was a review rather than a de novo rehearing.

260.

We accept that this issue is not the central complaint against Mr Bell, but we do find that it is closely related. In particular we do not accept that the Request is an attempt to create a new ground of complaint against Mr Bell to add to the grievance. Mr Boswell submitted his grievance appeal in February 2022, before the Request in issue was made. Part of that grievance appeal was the assertion that ‘Sam [who decided the grievance] also fails to mention that Iain had used his Your Call session of July the 2nd to lambast the critics of his June email as shocking and uneducated’. Further the allegation also falls under ‘theme two’ of the grievance appeal ‘Ideological harassment of liberal antiracists by Iain Bell…’ and reference to the comment in the Your Call session appears in the chronology in the first page of that section of the appeal document.

261.

We accept that in normal circumstances an appeal against a grievance outcome is intended under the ONS procedure to be a review rather than a rehearing. It is clear from the quote above that Mr Boswell certainly took the view that this had been raised with the original decision maker and at the relevant time Mr Boswell was, in any event, attempting to persuade the appeal manager to exercise his power to rehear the grievance. For all those reasons we do not accept that this is a ‘fishing’ attempt in order to find a new ground of complaint to add to the grievance appeal

262.

Ms Ivimy submitted that Mr Boswell was unreasonably persistent. She submitted that he had made his complaint about the original email from Iain Bell on 8 June 2022, which had been dealt with by way of a clarification by Mr Bell on 13 July 2022. He had received the outcome to his grievance, which had, in the main, not been upheld. He had been provided with information in response to a number of requests. She submitted that he was being unreasonably persistent in pursuing his complaint about the original email, and that he was being unreasonably persistent in repeatedly requesting personal information of other members of staff and by insisting that requests be treated as SARs, despite being repeatedly told the ONS’ position.

263.

If we had been considering a request made today, we would have agreed with the ONS on this issue. Mr Boswell continues (although not in the Request in issue) to repeatedly request personal data. He continues to insist that particular requests are treated as SARs. The underlying grievance has now been exhaustively considered and addressed. His persistence has, by the time of the tribunal hearing, become unreasonable.

264.

However, at the time of the response to the Request, we accept that Mr Boswell’s private interest in the information shows that there was a serious purpose behind the complaint. The requested information, which we have not seen, was at least potentially of relevance to his grievance appeal and therefore at least potentially of value to him in pursuing his grievance.

Motive

265.

We do not accept that Mr Boswell’s motive for making the Request in issue was a ‘fishing expedition’ for evidence to support new harassment complaints against colleagues. We have already dealt with the question of whether this was an attempt to make a new complaint against Mr Bell.

266.

In relation to colleagues, the Request in issue first appeared as part of the multi-part request made on 25 February 2022 that was refused as vexatious. Although many parts of that request sought individuals’ names, the bullet point equivalent to the current request did not. That is presumably because the purpose of the request is to obtain evidence in support of the complaint against Mr Bell.

267.

Although the Request itself does ask the ONS to consider the necessity of redactions or omissions of third-party data, this point is specifically made with reference to those emails described by Mr Bell as ‘shocking’ which the context suggests are emails supportive of Mr Boswell rather than emails containing matters that could form the basis of additional harassment complaints by Mr Boswell.

268.

We do not accept that this particular Request was intended to unearth evidence that would form the basis of new complaints against either Mr Bell or colleagues.

269.

We have already stated above that we do not accept that Mr Boswell deliberately made a request that overlapped with the MC FOIA request to cause disruption or annoyance.

Harassment and distress

270.

Up to the relevant date, Mr Boswell had adopted a moderate and courteous tone in his correspondence and telephone conversations with the respondent. We accept that individuals working in Legal Services felt uncomfortable with talking to a FOI requestor by telephone, as a result of the direct access which was available to Mr Boswell as an employee. We accept that dealing with the burden set out above was annoying and probably stressful. We do not accept, at the relevant date, that this reached the threshold of harassment or distress.

271.

Circumstances arising after the date upon which the request was responded to by the public authority are not relevant unless they cast light on the position at the relevant date. We do not accept that the letter of 22 May 2022 in which Mr Boswell accuses the legal officer who sent the response of unprofessionalism, bias and harassment casts any light on the position at the time of the response to the request.

272.

If this letter had been sent before the response to the Request, we would have taken the view that Mr Boswell’s immoderate tone and specific targeting of the individual who wrote the response was likely to cause distress to that individual.

273.

We have also considered the potential for distress to those individuals whose emails fall within the scope of the request. We accept Ms Ivimy’s submission that the ONS will ‘potentially’ have to contact those individuals. They may not have to if they rely again on section 41. They are not obliged to attempt to seek consent to disclosure.

274.

The ONS may be able to make a judgment on whether or not disclosure of any ‘personal stories’ or personal opinions of those who are not supportive of Mr Boswell is reasonably necessary for the purposes of his identified legitimate interests without contacting those individuals.

275.

As identified under burden above, in our view it might be possible under section 16 to suggest to Mr Boswell that the request be limited to those emails up to and including 2 July 2020, which would exclude any emails sent after Mr Boswell’s open email and, we anticipate, most of the ‘personal stories’ emails.

276.

However, we do accept that the ONS will at least potentially have to contact some or all of the individuals when considering the exemptions. Further, in the event that ONS adopt a different approach to the MC FOI request and decide to disclose some of the private emails, the ONS are likely to have to contact those individuals.

277.

Although we have not seen the relevant emails, we accept that some contain personal stories of harassment or discrimination. Further we accept that some individuals clearly found the entire incident stressful and upsetting. For those reasons we accept that responding to the request has the potential to cause upset to some employees and we take that into account.

Conclusions

278.

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. It is important for that qualified right of access that vexatiousness is a high hurdle. Further, whilst we have structured our discussion around a number of convenient headings, we must take a holistic approach to our assessment and we bear in mind that the fundamental question is whether or not the request was vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA.

279.

In our view, at the relevant time, the burden of this particular request, even looked at in the context of the entire related course of dealings, was reasonably significant but not disproportionate. We accept that there was some potential distress to some individuals and this points towards vexatiousness. We accept that Mr Boswell had been extremely persistent, but in the relevant period, we find that this persistence had not yet become unreasonable. We do not accept that there was an inappropriate motive for making the request. We accept that there was purpose and at least potential value to Mr Boswell in making the request. We do not accept that this was an inappropriate or improper use of FOIA or a request without reasonable foundation.

280.

Having considered the matter carefully and in the round, we find that this Request did not reach the high hurdle of vexatiousness and the appeal is allowed.”