FOI: So, what does vexatious really mean?

Whenever I do FOI training with journalists, there’s one question I can a) guarantee will be asked and b) have yet to find a full, understandable, answer for.

It’s this one:

“What does vexatious actually mean?”

It’s normally followed up by the question “Couldn’t they just call journalists vexatious?” To the second question, I normally say it would quite a brave authority which told a journalist inquiring for information that they were being vexatious, assuming, of course, that they cared about the fallout blocking access to information would bring.

But back to the first question. There’s the proper definition – as set out in FOI legislation – as to what vexatious means, but it’s not very clear.

So, while researching my blog post on the High Peak Council ‘gagging order’,  I found this response from Rother Council to an FOI request. Admittedly, it was from 2008 and it doesn’t look as though the council still applies that test, but here’s their take on vexatious:

The Information Commissioner has advised that a request may be regarded as vexatious if it:
* clearly does not have any serious purpose or value;
* is designed to cause disruption or annoyance;
* has the effect of harassing the public authority; or
* can otherwise fairly be characterised as obsessive or manifestly
unreasonable.
Unless we knew your real name and real address it would be more difficult for us to determine whether your request was vexatious or repeated. For instance, unless you are a professional journalist or researcher, your request would be less likely to have any serious purpose or value if you do not live in this District.

So you’re more likely to be vexatious if you don’t live in the area and aren’t a journalist or researcher? Interesting – and presumably bad news for any political party worker keen to make a bad news story against the Government stick.

Like I said, I’ve no idea if this still applies at Rother Council, but I thought it was worth sharing

4 comments

  1. David,
    On the contrary, it is now easier to apply vexatious given the recent tribunal decision. The exemption can be applied to journalists and, in many ways, it is easier to apply to journalists given the logic of the decision. http://www.informationtribunal.gov.uk/DBFiles/Decision/i725/20120329%20Decision%20EA20110222.pdf
    I would suggest that it is not an issue of bravery. If the requests are vexatious, as defined by this tribunal decision, then any organisation can apply it to any applicant. I did not see the questions as vexatious in the IPCC case, but then different people and organisations have different tolerance levels, which is why the tribunal clarified the issue.

    One has to remember that vexatious is not about blocking access to the information. Instead, it is dealing with the request itself because of its purpose as well as the wider context of the applicant. Should any organisation worry about applying an exemption to a request by a journalist? In time, one will see vexatious applied to a journalist request if it fits that category. It is not matter of if (given the tribunal ruling) but when.

    A further point to consider, especially for your article 10 HRA rights, is that if you make hostile comments about the organisation they can consider that in their decision to declare a request vexatious. For reference see final sentence of paragraph 20. I am not sure who decides what is “hostile” but it does set a benchmark. Have a look at the IPCC comments and consider the issue.

  2. Hi Lawrence,
    Thanks for the comment. I wasn’t saying that journalists were exempt, just that I think that journalists are better placed to make a noise about being denied access to info than most are – although that is changing through social media.

    I think the point you make about interpretation of vexatious is the reason I wrote this post – one person’s idea of vexatious won’t be another person’s. Certainly, the notion of being known to be hostile to an organisation being a reason they can reject requests begs some interesting questions about the real meaning of your right to know!

    1. David
      You are correct i over egged it. I was focusing on the normality of vexatious ie should not be seen as a rarity it has become for some.
      I agree the power issue and relationship issue is key. I would think a telephone call alleviates many of these issues. In some cases, though, it may not work. However social media does allow people to broadcast in ways they may not have been able to regarding these issues.

      Interesting times ahead.🙂

  3. It’s a pity that the term “vexatious” can’t be applied to the data controller. There would be a few candidates, but top of the pile in my experience would be Wirral Council. They’ve been involved in learning disabled abuse, disability discrimination, the paying off of alleged abusers / failing chief executives / bullying and a whole host of other nasty, bordering on the deviant, malpractice going back many years. Their FoI section appears to have been set up with the express purpose of defending, minimising, concealing, putting obstacles in the way of openness and transparency and generally dragging its feet until only the most persistent of enquirers remain. Here is just another (rather disturbing) example of what I regard to be “vexatious” behaviour on the part of the data controller:

    http://www.whatdotheyknow.com/request/dass_recent_departure_of_two_sen

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