Gary Cressman v The Information Commissioner & Anor

This appeal concerns a request made under the Freedom of Information Act 2000 (“FOIA”) for disclosure of the Developer Remediation Contract entered into between the Secretary of State and Barratt Developments PLC, together with its appendices, addendum, and associated documentation. The request sits within the broader context of the Government’s response to the remediation of residential buildings affected by serious fire safety defects, and in particular the arrangements entered into with developers for the purposes of addressing such risks.

The Information Commissioner determined, by Decision Notice dated 18 March 2024 (reference IC-261246-G8M0), that the second respondent, the Secretary of State for Levelling Up, Housing and Communities (“DLUHC”), was entitled to refuse the request under section 14(1) FOIA on the basis that compliance would impose a grossly disproportionate burden, such that the request was properly to be characterised as vexatious. The Appellant challenges that conclusion.

The Tribunal’s task is to determine, in accordance with section 58 FOIA, whether that Decision Notice is in accordance with the law. If the Tribunal concludes that it is not, it must allow the appeal and substitute such notice as ought to have been given.

The Tribunal held an oral hearing at which the Appellant appeared in person and made oral submissions. The second respondent was represented and advanced submissions both in writing and orally. The Commissioner did not attend the hearing but relied upon written submissions. The Tribunal is grateful to the Appellant for the clarity with which he presented his case and to Mr Hanstock on behalf of the second respondent for his invaluable assistance and the measured way in which he advanced his case.

At its core, the appeal raises the question whether the Commissioner erred in concluding that the request was vexatious within the meaning of section 14(1). However, as became clear in the course of both the written and oral submissions, the resolution of that question depends critically upon the proper construction of the request itself, and in particular upon whether the Commissioner adequately engaged with the manner in which the request had been pursued and understood in the correspondence between the parties.

The Tribunal considers it important to emphasise at the outset that the statutory concept of “vexatiousness” is a technical one, directed to the proper functioning of the FOIA regime and the protection of public authorities from disproportionate burdens. It does not reflect upon the good faith of the requester, nor upon the legitimacy or public importance of the subject matter. In the present case, the information sought plainly relates to matters of significant concern to leaseholders and the wider public, and nothing in this decision should be taken as diminishing that context.

For the reasons that follow, the Tribunal concludes that the Decision Notice is not in accordance with the law.

On 19 April 2023 the Appellant made a request under the Freedom of Information Act 2000 (“FOIA”) seeking disclosure of the Developer Remediation Contract entered into between the Secretary of State and Barratt Developments PLC. The request was framed in broad and comprehensive terms, seeking “the entire contract” together with “all appendices, addendums etc” and “any further documentation which forms a part of the contract”. As the Tribunal has already noted, that formulation, taken at face value, is apt to encompass the entirety of the contractual material forming part of the relevant arrangements between the Government and the developer.

The request was made in the context of the Government’s programme for the remediation of residential buildings affected by fire safety defects, implemented in the aftermath of the Grenfell Tower tragedy. A standard or pro forma version of the Developer Remediation Contract had been placed in the public domain. However, the Appellant made clear within his request that the published version did not include information of direct and practical significance to leaseholders. In particular, he identified the absence of information concerning the buildings to which the contractual arrangements applied and the “timespan for repairs”. The request was therefore directed not merely to the abstract contractual framework, but to the operational detail contained within the appendices and associated material, including information capable of identifying affected buildings and the progress of remediation.

The second respondent initially refused the request relying upon section 38 FOIA (health and safety), subsequently supplemented by reliance upon section 40 FOIA (personal data). The Appellant sought an internal review of that decision on 13 August 2023. In the course of doing so, he used the following language:

“In any case it would serve my purposes if the names of the buildings in any response were redacted apart from one which is Centenary Plaza…”

That correspondence gives rise to a central issue in this appeal. The Appellant contends that, at the internal review stage, he thereby refined or limited his request so that it was, in substance, directed to information concerning a single building, namely Centenary Plaza. The second respondent disputes that characterisation, maintaining that the request was not reformulated and remained one of general scope, seeking contractual material across all buildings. The proper construction of the request, including the significance of this passage, is therefore a matter in dispute between the parties and lies at the heart of the Tribunal’s analysis.

Following the internal review, the second respondent maintained its refusal dated 19 September 2023. In that response, the following wording appears:

“In respect of your revised request to see only the data relating to Centenary Plaza…”

The Tribunal notes that the use of the expression “revised request” is capable, at least superficially, of suggesting that the request had been altered or narrowed. However, the significance of that wording must be assessed in the context of the correspondence as a whole.

The second respondent’s subsequent communications, dated 18 January 2024, further illuminate its position. In particular, it stated:

“The risks in disclosing data relating to Centenary Plaza was considered such that it was possible to disclose that for your Internal Review – however; as you now maintain that you want all of the information on the list disclosed to you, it would not be feasible…”

This passage indicates that the second respondent, at least at one stage, distinguished between disclosure limited to “data relating to Centenary Plaza” and disclosure of “all of the information”. It also indicates that disclosure on the more limited basis had in fact been considered, though ultimately not pursued. The implications of that distinction form part of the Tribunal’s later analysis.

The Appellant subsequently complained to the Information Commissioner under section 50 FOIA. During the course of the Commissioner’s investigation there was a material shift in the basis upon which the request was resisted. The second respondent withdrew its reliance on sections 38 and 40 FOIA and instead relied upon section 14(1), on the basis that compliance with the request would impose a grossly disproportionate burden, in a decision dated 18 January 2024.

The second respondent’s case before the Commissioner, and as maintained before this Tribunal, is that the material falling within the scope of the request comprises a substantial dataset, including appendices identifying a large number of buildings covered by the contractual arrangements. It contends that this dataset comprises many hundreds of entries, initially estimated at approximately 1,400 and subsequently refined to approximately 750 buildings. It further contends that the information is not held in a form which permits straightforward extraction or disclosure, and that meaningful compliance would require an individualised, building-by-building assessment.

That exercise, it is said, would involve consideration of the applicability of exemptions, the status of remediation works, and in some cases the need for consultation. On that basis, the second respondent estimated that even an initial assessment would require approximately five minutes per building, producing an estimated burden of at least 62.5 hours. It is that assessment of burden which underpinned the reliance on section 14(1).

The Commissioner accepted that analysis. In a Decision Notice dated 18 March 2024, the Commissioner concluded that the burden of complying with the request, when balanced against the purpose and value of the information sought, was sufficient to render the request vexatious within the meaning of section 14(1) FOIA.

The Appellant appeals against that conclusion. In his grounds of appeal and subsequent submissions, he contends, in summary, that the second respondent should not have been permitted to alter the basis of refusal during the Commissioner’s investigation so as to rely upon section 14(1), and that the reliance on that provision is in any event misplaced. Central to his case is the contention that his request had, by the internal review stage, been limited in substance to Centenary Plaza, such that the reliance on a large dataset and the corresponding assessment of burden is misconceived. He further contends that the information sought could in any event be disclosed through the application of redactions, particularly in respect of personal data.

In a letter dated 19 March 2024, the Commissioner stated that although the Appellant did refine his request “slightly”, he did not refine his request to ask for the information about Centenary Plaza only.

The Commissioner, in his Response, resists the appeal and maintains the reasoning set out in the Decision Notice. He relies upon the established principles governing section 14(1), including the proposition that a request may properly be characterised as vexatious by reason of burden alone, notwithstanding the existence of a legitimate public interest in the information and also the lawfulness of late reliance on s.14(1). He maintains that the Decision Notice correctly proceeded on the basis that the request remained broad in scope.

For its part, the second respondent maintains that position. It contends that the reference to Centenary Plaza does not amount to a reformulation of the request but instead reflects the Appellant’s particular interest within a request that remained general in scope. It reiterates that compliance would require a resource-intensive assessment across all buildings falling within the contractual framework, and that section 14(1) is properly engaged on that basis.

Accordingly, the appeal comes before the Tribunal against the background of competing positions. The Appellant contends that the request was effectively confined, in substance, to a single building and that the reliance on section 14(1) is flawed. The second respondent and the Commissioner maintain that the request remained broad in scope and that compliance would impose a disproportionate burden. It is against that background that the Tribunal turns to consider the applicable legal framework and the issues arising for determination.

For the purposes of determining this appeal, we have considered those documents contained within the updated bundle consisting of 128 (electronic) pages, the authorities bundle consisting of 118 (electronic pages), the second respondent’s skeleton argument (5 electronic pages) and the oral submissions made during the course of the hearing. We note that the ICO did not send a representative to the hearing but instead relied on their written submissions.

The Tribunal had regard to the case management order dated 4 November 2024 made by Judge Buckley. That order included a direction pursuant to rule 14(6) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 in respect of certain information contained within a closed bundle. The direction provided that such material was to be disclosed to the Tribunal but not to any other party and further recorded that the position would be subject to review at the substantive hearing.

In accordance with that direction, the Tribunal has undertaken a fresh and independent assessment of the status of the material contained within the closed bundle. The Tribunal does not proceed on the basis that the earlier direction is determinative. Rather, it has considered, for itself, whether continued restriction on disclosure is justified, having regard to the nature of the material, the interests said to be engaged, and the requirements of fairness and open justice.

The Tribunal is satisfied that the closed bundle contains information which is said by the second respondent to engage exemptions under Part II FOIA, and which in substance reflects the types of information relied upon in support of its case, including material relating to the contractual arrangements and the dataset said to fall within scope of the request. The Tribunal further accepts that disclosure of that material, without restriction, would be liable to prejudice the interests which those exemptions are designed to protect.

In those circumstances, the Tribunal is satisfied that a restriction on wider disclosure remains justified. However, it emphasises that such restriction is justified only to the limited extent strictly necessary to secure the protection of those interests. In accordance with established principles governing the use of closed material, the Tribunal has approached the issue on the basis that any departure from the requirements of open justice must be both necessary and proportionate.

At the same time, the Tribunal has been satisfied that the issues arising in this appeal are capable of fair determination on the basis of the open material, supplemented, where necessary, by such limited reference to the closed material as is required for the Tribunal’s own evaluative purposes. The essential matters in dispute—namely the scope of the request, the application of section 14(1), and the assessment of burden—have been fully ventilated in open evidence and submissions.

The Tribunal has therefore taken care to ensure that no reliance is placed, in these reasons, upon any material the substance of which has not been disclosed to the Appellant. To the extent that the Tribunal has had regard to matters contained within the closed bundle, it has done so only at a level of generality which does not risk disclosure of protected information, and only insofar as necessary to test and evaluate the evidence of the second respondent.

In those circumstances, the Tribunal is satisfied that the adoption of a closed procedure does not give rise to any unfairness to the Appellant and that it is neither necessary nor appropriate to issue a separate closed judgment. All matters material to the Tribunal’s decision are contained within these open reasons.

FOIA establishes a general right of access to recorded information held by public authorities, subject to the application of statutory exemptions and procedural provisions contained within the Act. The central provision is section 1(1), which provides:

“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 1(1) thus creates both a right to be informed whether information is held, and, if so, a right to have that information communicated. That right is not absolute. It is qualified by the exemptions contained within Part II FOIA, and by other provisions of the Act, including section 14, which relieve a public authority of the obligation to comply with certain categories of request.

The statutory scheme provides for the independent supervision of the exercise of those rights by the Information Commissioner. Where a complaint is made, the Commissioner must issue a decision notice under section 50 FOIA determining whether, in any specified respect, the public authority has complied with the requirements of the Act.

By section 57(1) FOIA, “where a decision notice has been served, the complainant or the public authority may appeal to the Tribunal against the notice.” The Tribunal’s jurisdiction on such an appeal is defined by section 58 FOIA. That provision requires the Tribunal to consider whether the Decision Notice is in accordance with the law and, where the Commissioner has exercised a discretion, whether that discretion ought to have been exercised differently.

In carrying out that task, the Tribunal exercises a full merits jurisdiction. It is not confined to reviewing the reasonableness of the Commissioner’s conclusions, but is entitled, and indeed required, to make its own findings of fact and to reach its own conclusions of law on the evidence before it. The Tribunal may therefore substitute its own decision where it concludes that the Decision Notice is not in accordance with the law.

However, that jurisdiction is anchored to the subject matter of the Decision Notice. The Tribunal’s task is to determine the lawfulness of the Decision Notice in respect of the request which was before the Commissioner. It is not to determine different or hypothetical requests, nor to substitute a materially different factual basis for that which was before the Commissioner. That limitation is of particular importance in cases, such as the present, where the proper construction and scope of the request are themselves in issue.

Section 14(1) FOIA provides that section 1(1) does not oblige a public authority to comply with a request for information if the request is vexatious. The term “vexatious” is not defined exhaustively within the Act, and its application depends upon an evaluative judgment in light of all the circumstances of the case.

It is well established that the concept of vexatiousness is broad and flexible, and is directed to the protection of public authorities, and the effective operation of the FOIA regime, against demands which impose unjustified or disproportionate burdens. The assessment under section 14(1) requires consideration of all the relevant circumstances: see Dransfield v Information Commissioner [2015] EWCA Civ 454.

Among the factors which may be taken into account are the volume of information sought, the complexity of the task required to comply, the resources which would need to be deployed, and the impact upon the authority’s ability to discharge its other functions. The purpose and value of the request may also be relevant. The assessment ultimately involves a balance between these competing considerations.

It is further recognised that, in an appropriate case, the burden of compliance may be sufficient, of itself, to render a request vexatious: see Craven v Information Commissioner [2015] EWCA Civ 454 and Cabinet Office v Information Commissioner and Ashton [2018] UKUT 208 (AAC). However, such a conclusion must be reached following a proper evaluative exercise based on the circumstances of the case.

The application of section 14(1) therefore requires an assessment of the burden of complying with the request as properly understood. Where there is a dispute as to the scope or meaning of the request, that issue must be resolved as part of the Tribunal’s fact-finding exercise before the evaluation required by section 14(1) can be carried out.

Section 16(1) FOIA provides:

“It shall be the duty of a public authority to provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to persons who propose to make, or have made, requests for information to it.”

The purpose of that provision is to facilitate the effective operation of the right of access by ensuring that requesters are assisted, so far as reasonably practicable, in identifying and obtaining the information which they seek.

The duty under section 16 does not require a public authority to rewrite a request or to treat it as something fundamentally different from that which was made. However, it forms part of the statutory framework within which requests are handled and may, where relevant, provide context for understanding the interaction between the parties.

In the present appeal, section 16 is not determinative of the outcome but forms part of the statutory background against which the issues fall to be considered.

In summary, the Tribunal must determine whether the Decision Notice is in accordance with the law in respect of the request before the Commissioner, exercising a full merits jurisdiction. In doing so, it must assess the application of section 14(1) by reference to the request as found as a matter of fact, taking into account all relevant circumstances, including the burden of compliance.

It is against that legal framework that the Tribunal turns to consider the issues arising for determination in this appeal.

The first substantive issue for determination is the proper construction and scope of the request to which the Decision Notice relates. The resolution of that issue is of central importance to this appeal, since the application of section 14(1) FOIA necessarily depends upon a correct understanding of the request to which it is said to apply. It is axiomatic that the evaluative exercise required by section 14(1) must be directed to the request as properly understood, rather than to an abstract or mischaracterised version of it.

The Tribunal begins with the terms of the request itself. As set out above, the request made on 19 April 2023 was framed in broad and comprehensive language, seeking “the entire contract” together with “all appendices, addendums etc” and “any further documentation which forms a part of the contract”. Read in isolation, that wording is capable of encompassing the entirety of the contractual material between the second respondent and Barratt Developments PLC, including appendices identifying buildings and setting out the progress of remediation works.

The Tribunal accepts that, as a matter of language, the request is wide in scope. However, it does not follow that the exercise of construction required for the purposes of FOIA is confined to a purely literal reading of that wording. It is well established that a request must be interpreted objectively, having regard not only to the words used but also to the context and the surrounding circumstances in which it was made and pursued. In Dransfield v Information Commissioner [2015] EWCA Civ 454, the Court of Appeal emphasised that the application of section 14 requires consideration of all the relevant circumstances and an assessment of the request in its real-world context. That approach underscores that the Tribunal’s task is to identify the substance of what the requester was seeking, rather than to adopt an artificially rigid or technical reading of the language used.

In the present case, the Tribunal considers that the subsequent correspondence between the parties, and in particular the exchanges at the internal review stage, form an important part of that context. Following the refusal of his request, the Appellant stated:

“In any case it would serve my purposes if the names of the buildings in any response were redacted apart from one which is Centenary Plaza…”

The Tribunal accepts that this statement does not, in its terms, purport to withdraw or replace the original request. It is expressed conditionally and framed as an indication of what would satisfy the Appellant rather than as an unequivocal reformulation or substitution of the request. In those circumstances, and consistent with the statutory scheme, the request which fell to be determined by the Commissioner remained, as a matter of form, the request made on 19 April 2023.

However, the Tribunal considers that this correspondence is nonetheless of considerable significance. While it does not alter the formal scope of the request, it provides a clear indication of the Appellant’s practical focus, namely information relating to a particular building, Centenary Plaza, and of his willingness to accept disclosure structured on that basis, subject to redaction. It therefore sheds light on the substance of the request as it was being pursued and the outcome which the Appellant was seeking to achieve in practice.

That conclusion is reinforced by the second respondent’s own response at the internal review stage, which referred to a “revised request to see only the data relating to Centenary Plaza”. The Tribunal does not consider it necessary to determine whether that language is properly to be characterised as recognising a formal variation of the request. What is material is that it evidences an understanding, on the part of the public authority itself, that the request could be viewed and addressed by reference to a more focused body of information.

 The position is further illustrated by the second respondent’s subsequent statement that:

“The risks in disclosing data relating to Centenary Plaza was considered such that it was possible to disclose that for your Internal Review – however; as you now maintain that you want all of the information on the list disclosed to you, it would not be feasible…”.

This passage demonstrates that the second respondent distinguished, in practical terms, between disclosure confined to data relating to Centenary Plaza and disclosure of “all of the information on the list”. It further indicates that disclosure on the former basis had been considered as a realistic possibility, even if ultimately not pursued. The Tribunal regards that distinction as directly relevant to understanding how the request was approached in practice and how its scope was being understood by the parties.

The Tribunal has also taken into account the submissions made on behalf of the second respondent at the hearing, in which it was accepted that the wording of the internal review response “does rather look like” the request had been treated, at that stage, as narrower in its practical focus, notwithstanding the submission that the request remained unchanged in law.

Against that background, the Tribunal reaches the following conclusions.

First, the request which fell to be determined by the Commissioner was the request made on 19 April 2023. The Tribunal does not find that the Appellant’s subsequent correspondence effected a formal substitution, variation or replacement of that request, nor that a separate or new request arises for determination in this appeal. This conclusion reflects the requirement, under section 58 FOIA, that the Tribunal’s jurisdiction is directed to the request which was before the Commissioner.

Secondly, however, the Tribunal finds that the subsequent exchanges between the parties materially informed the understanding of the request as it was pursued in substance. In particular, they demonstrate that the request had, in practical terms, a clear and identifiable focus, and that the possibility of addressing it on a more limited and targeted basis had been recognised by both parties.

Even on the footing that the request remained unaltered in form, the subsequent correspondence formed part of the factual matrix in which the request fell to be considered. Consistent with the approach endorsed in Dransfield, those surrounding circumstances are capable of informing the proper understanding of the request and the evaluation which the decision-maker is required to undertake.

It follows that the request cannot properly be approached, for the purposes of applying section 14(1), as a wholly abstract or indivisible demand necessarily requiring a comprehensive assessment across all material falling within the broadest possible interpretation of its wording. Rather, it must be understood as it arose in practice, including the manner in which it was clarified, discussed, and addressed in the course of the parties’ engagement. To proceed otherwise would risk substituting a rigid and formal conception of the request for its substance as a matter of fact.

It is on that basis that the Tribunal proceeds to consider whether the Commissioner’s application of section 14(1) was in accordance with the law.

The Tribunal turns to consider whether the Information Commissioner’s conclusion that the request was vexatious within the meaning of section 14(1) FOIA was in accordance with the law. As set out above, that is an evaluative exercise which requires consideration of all the circumstances of the case, including both the burden of compliance and the context, purpose and value of the request.

In approaching that question, the Tribunal directs itself in accordance with the established principles articulated in the authorities. The assessment of whether a request is vexatious is a holistic and fact-sensitive exercise. It is not to be undertaken mechanistically or by reference to a purely literal reading of the request. Rather, as emphasised in Dransfield v Information Commissioner, it requires a broad evaluative judgement in which all the relevant circumstances are brought into account, including the nature and purpose of the request, the burden of compliance and the way in which the request has been made and pursued. The focus is upon the substance and effect of the request in its real world context and not merely its formal characteristics.

It is common ground that the second respondent’s case before the Commissioner, and before this Tribunal, was that compliance with the request would entail a substantial burden. In particular, it was contended that the request encompassed appendices and associated material identifying a large number of buildings, initially estimated at approximately 1,400 entries and subsequently refined to approximately 750 buildings. It was further contended that the information was not held in a form permitting straightforward extraction and that compliance would require an individualised, building-by-building assessment involving consideration of the applicability of exemptions, the status of remediation works, and, in certain cases, consultation with third parties.

On that basis, the second respondent estimated that even a preliminary review would require approximately five minutes per building, producing an estimated minimum burden of some 62.5 hours. The Tribunal accepts that, if such an exercise were in fact required across the entirety of that dataset, it would represent a significant and potentially onerous burden on the public authority. It is well established that, in an appropriate case, such a burden may be sufficient of itself to justify a finding of vexatiousness.

However, the question before the Tribunal is not whether such a burden might arise on the most expansive reading of the request, nor whether the burden identified by the second respondent was in the abstract capable of engaging section 14(1). The question is whether the Commissioner lawfully concluded that the request was vexatious, having regard to the request as properly understood and to all material considerations relevant to that evaluative judgment.

In the Tribunal’s judgment, the Commissioner’s conclusion cannot be sustained. The Tribunal identifies three principal and interrelated deficiencies in the analysis, each of which bears directly upon the lawfulness of the evaluative exercise undertaken.

First, the assessment of burden proceeded on an unduly rigid and abstract understanding of the scope of the request. As set out in the preceding section, the request, while broad in its original formulation, was accompanied by subsequent correspondence in which the Appellant made clear that “it would serve [his] purposes if” disclosure were effectively confined to information relating to a single building, namely Centenary Plaza. The second respondent, for its part, referred to a “revised request” in those terms and acknowledged that disclosure relating to that building had been considered.

Those exchanges formed part of the factual context in which the request fell to be evaluated. They materially illuminated the scope and practical operation of the request as it was being pursued and were directly relevant to the assessment required under section 14(1) which is concerned with the real-world impact and operation of the request. They were therefore material considerations to which the Commissioner was required to have regard.

The Commissioner’s analysis does not engage with those matters. The Decision Notice proceeds on the basis that the request necessarily required comprehensive consideration across the full dataset, without addressing whether, in light of the subsequent exchanges, the request might sensibly have been approached or understood in a more focused way for the purposes of assessing burden. That omission reflects a failure to engage with a material aspect of the context and results in an assessment which is confined to a formal and abstract conceptions of the request. This constitutes a defect in the evaluative exercise.

Secondly, the Commissioner did not grapple with the significance of the second respondent’s own recognition that the request could, at least in practical terms, be approached on a more limited basis. The statement that disclosure of “data relating to Centenary Plaza” had been considered but that disclosure of “all of the information on the list” would not be feasible demonstrates that the authority itself distinguished between materially different approaches to the request.

That distinction is directly relevant to the assessment of burden. It indicates that the burden identified by the authority was not necessarily an inherent or inescapable consequence of the request itself but depended upon the manner in which the request was approached and characterised in practice. In those circumstances, a failure to engage with that distinction amounts to a failure to assess whether the identified burden was properly attributable to the request as it arose in context.

Thirdly, while the Decision Notice recognises, including at paragraph 15, that the request has a legitimate and significant purpose, that assessment is not conducted against a correct understanding of the request in its factual context. Where, as here, the burden assessment proceeds on an over-expansive and abstract understanding of the request, the balancing exercise between burden and value is correspondingly affected. In those circumstances, the Tribunal is not satisfied that the Commissioner undertook the evaluative exercise required by section 14(1) on a proper footing and this further undermines the conclusion that the request was vexatious.

Drawing these matters together, the Tribunal concludes that the Commissioner’s decision to uphold reliance on section 14(1) was based upon an evaluative exercise which did not take into account all material considerations and which proceeded on an unduly rigid understanding of the request in its context. That amounts to an error of law for the purposes of section 58 FOIA.

The Tribunal emphasises that it does not conclude that section 14(1) could not in principle be engaged in relation to a request of this nature. Nor does it substitute a definitive conclusion that the request was not vexatious. Rather, the Tribunal’s conclusion is that the reasoning by which the Commissioner reached that conclusion was legally deficient.

It follows that the Decision Notice is not in accordance with the law and must be set aside.

The Tribunal has also considered the Commissioner’s subsequent correspondence of 19 March 2024, sent the day following the Decision Notice. In that correspondence, the Commissioner indicated that the Appellant’s reference to Centenary Plaza constituted only a limited “refinement” of the request and did not amount to a restriction of its scope. It suggested a further, more focused request might be made. The Tribunal accepts that such correspondence may properly be taken into account as part of the evidential picture when considering what the Commissioner understood the issues to be. However, it cannot cure any deficiency in the reasoning contained in the Decision Notice. The question for this Tribunal, pursuant to section 58 FOIA, is whether the Decision Notice was in accordance with the law at the time it was made, and that assessment must be conducted by reference to the reasoning which underpinned that decision.

In that regard, the Tribunal notes that the Commissioner’s analysis, both in the Decision Notice and as reflected in the subsequent correspondence, proceeds on the footing that the crucial question was whether the request had been formally narrowed. The Commissioner’s conclusion was that it had not. However, that conclusion does not exhaust the relevant inquiry for the purposes of section 14(1). The statutory question is not limited to whether the request was formally varied but extends to the burden of complying with the request as properly understood in its factual context, including the manner in which it was clarified, pursued and responded to in the course of the parties’ engagement.

The Tribunal considers that the Commissioner’s approach elided these distinct questions. By focusing solely on whether there had been a formal narrowing of scope, the Commissioner did not engage with the separate and material issue arising from the correspondence, namely that the Appellant had identified a more focused basis upon which disclosure would meet his purposes, and that the public authority had itself recognised, at least in principle, the distinction between disclosure confined to a single building and disclosure across the full dataset. That distinction was directly relevant to the assessment of the burden of compliance, which formed the central foundation of the reliance on section 14(1).

Properly analysed, the Appellant’s reference to Centenary Plaza was capable of bearing upon the evaluative exercise required by section 14(1), irrespective of whether it amounted to a formal variation of the request. It went to the way in which the request might realistically be approached and the extent to which the burden said to arise was an inescapable consequence of the request itself, as opposed to the particular manner in which it was characterised. The Commissioner’s conclusion that the request had not been formally restricted does not address that question.

In those circumstances, the Tribunal concludes that the subsequent correspondence does not cure the deficiency identified above. On the contrary, it confirms that the Commissioner’s analysis proceeded by reference to an unduly narrow conception of the issue, treating the matter as turning solely on formal scope, and not engaging with the broader contextual considerations which were material to the application of section 14(1). That failure to address a relevant and potentially material aspect of the evidential context forms part of the Tribunal’s conclusion that the Decision Notice is not in accordance with the law.

The authorities emphasise that the assessment required under section 14(1) is a broad, context-sensitive evaluative judgment, requiring consideration of all the relevant circumstances: see Dransfield v Information Commissioner [2015] EWCA Civ 454. While the burden of compliance may, in an appropriate case, be sufficient to justify a finding of vexatiousness, that conclusion must be reached on a proper understanding of the request in its factual context: Craven v Information Commissioner [2015] EWCA Civ 454. It follows that a decision-maker who focuses only on the formal scope of a request, without engaging with the manner in which it has been clarified and pursued, risks failing to take into account a material consideration where, as here, the factual context bears directly upon the assessment of burden under section 14(1).

The Tribunal also addresses the issue, raised in both written and oral submissions, concerning a further or separate request said to have been made by the Appellant in relation to information concerning Centenary Plaza.

The evidence before the Tribunal indicates that, following the internal review process in relation to the present request, the Appellant pursued a further request directed specifically to that building and the information associated with it. It is further suggested that such a request was, at least in part, determined through the statutory process, including consideration by the Information Commissioner.

The Tribunal accepts that such a request may properly be characterised, in substance, as distinct from the request which is the subject of the present appeal. However, that conclusion does not affect the Tribunal’s jurisdiction in this appeal, which is confined by section 58 FOIA to determining whether the Decision Notice under challenge is in accordance with the law.

It follows that the Tribunal is neither required nor able, in these proceedings, to determine the lawfulness of any decision taken in respect of that separate request, nor whether any obligations arising from that process have been complied with. Those matters fall outside the scope of the present appeal.

The Tribunal also rejects the submission that the existence or outcome of that separate request renders the present appeal academic. The appeal concerns the lawfulness of the Commissioner’s determination in respect of the earlier request. The Tribunal is required to determine that issue, regardless of whether related or overlapping information has subsequently been sought or disclosed through a different request.

That said, the existence of a more focused request is not without relevance. It provides further context as to the Appellant’s underlying interest in information relating to a particular building. However, the Tribunal does not treat the existence of that separate request as bearing upon the construction of the request which is the subject of this appeal, which falls to be determined on its own terms and by reference to the evidence available at the relevant time.

The existence of the separate request is also relevant to the question of remedy. It supports the view that the appropriate course, where the Decision Notice is found to be unlawful, is not to direct immediate disclosure, but to require the public authority to determine the request in accordance with FOIA, including consideration of any applicable exemptions, in a manner consistent with the statutory scheme.

The Tribunal has had regard to the duty imposed upon public authorities by section 16(1) FOIA to provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to persons who have made, or propose to make, requests for information.

The purpose of section 16 is to facilitate the effective operation of the statutory right of access by encouraging constructive engagement between the public authority and the requester. It recognises that requests may be framed in broad or imprecise terms and that, where appropriate, such engagement may assist in clarifying how the request is to be understood or addressed in practice.

In the present case, the Appellant relies upon section 16 in support of his submission that the second respondent ought to have engaged more fully with the indication given at the internal review stage that disclosure confined to Centenary Plaza would “serve [his] purposes”. The Tribunal accepts that such correspondence is relevant as part of the factual background, albeit its relevance arises independently of section 16.

However, the Tribunal does not consider it necessary to determine whether there was any breach of section 16 in the present case, nor does its conclusion turn upon any such finding. The issue for determination in this appeal is the lawfulness of the Commissioner’s reliance on section 14(1), and that question is resolved on the basis set out above.

Section 16 does not require a public authority to treat a request as something other than the request which has been made, nor to substitute a materially different formulation in its place. Its relevance in the present appeal is therefore limited.

In those circumstances, the Tribunal treats section 16 as forming part of the statutory background against which the interactions between the parties took place, but not as determinative of the issues arising for decision.

For the reasons set out above, the Tribunal concludes that the Decision Notice is not in accordance with the law. The Commissioner’s conclusion that the request was vexatious within the meaning of section 14(1) FOIA was based upon an evaluative exercise which failed to take into account material considerations and which proceeded on an unduly rigid understanding of the request in its proper context.

It follows that the appeal must be allowed.

The Tribunal has considered whether it is appropriate to go further and make a direction requiring the disclosure of information. The Appellant invited the Tribunal to order disclosure, including, in the course of the hearing, a request that any such disclosure should comprise the most up-to-date information available, rather than information held at the date of the original request.

The Tribunal does not consider that such an order would be appropriate. The Decision Notice addressed only the application of section 14(1). The applicability of other provisions of FOIA, including exemptions under Part II, has not been determined by the Commissioner on their merits in respect of this request.

In those circumstances, it would be inconsistent with the statutory scheme and outside the proper scope of the Tribunal’s function on this appeal, to determine the question of disclosure without affording the public authority the opportunity to consider, in the first instance, whether such exemptions apply and to issue a refusal notice compliant with section 17 FOIA if appropriate.

The Tribunal has also taken into account the submissions of the second respondent to the effect that, if section 14(1) were not upheld, further consideration would be required of other exemptions. The Tribunal considers that submission to be well-founded. Those issues were not determined by the Commissioner and the present appeal has not provided a sufficient evidential or procedural basis upon which such issues could properly be determined by the Tribunal.

The Tribunal therefore concludes that the appropriate course is to substitute a Decision Notice requiring the public authority to determine the request in accordance with FOIA. That course reflects the statutory allocation of decision-making functions, whereby the public authority must first consider whether information is held and whether any exemption applies, subject to oversight by the Commissioner and if necessary, the Tribunal on appeal.

In reaching that conclusion, the Tribunal has also considered the Appellant’s submissions regarding delay and the currency of information. The Tribunal recognises the potential practical importance of up-to-date information. However, FOIA confers a right of access to information held at the time of the request and the Tribunal’s jurisdiction in this appeal is confined to determining the lawfulness of the Decision Notice in respect of that request. It is not for the Tribunal, in disposing of the present appeal, to direct the provision of information outside that framework. If the Appellant seeks more current information, it is open to him to pursue that by way of a further request.

Accordingly, the Tribunal will allow the appeal, set aside the Decision Notice, and substitute a decision (as detailed at the beginning of this decision) requiring the public authority to deal with the request in accordance with its obligations under FOIA