FT/EA/2025/0126 - [2025] UKFTT 01344 (GRC)

Legal framework

FOIA

Section 14(1) of FOIA provides:”Section 1(1) does not oblige a public authority to comply with a request for information if the request is vexatious.”

There is no further guidance on the meaning of “vexatious” in the legislation. The leading guidance is contained in the Upper Tribunal (“UT”) decision in Information Commissioner v Dransfield [2012] UKUT 440 (AAC), as upheld and clarified in the Court of Appeal (“CA”) in Dransfield v Information Commissioner and another & Craven v Information Commissioner and another [2015] EWCA Civ 454 (CA).

As noted by Arden LJ in her judgment in the CA in Dransfield, the hurdle of showing a request is vexatious is a high one: “…the starting point is that vexatiousness primarily involves making a request which has no reasonable foundation, that is, no reasonable foundation for thinking that the information sought would be of value to the requester, or to the public or any section of the public. Parliament has chosen a strong word which therefore means that the hurdle of satisfying it is a high one, and that is consistent with the constitutional nature of the right. The decision maker should consider all the relevant circumstances in order to reach a balanced conclusion as to whether a request is vexatious.” (para 68).

Judge Wikeley’s decision in the UT decision on Dransfield sets out more detailed guidance that was not challenged in the CA. The ultimate question is, “is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA?” (para 43). It is important to adopt a “holistic and broad” approach, emphasising “manifest unreasonableness, irresponsibility and, especially where there is a previous course of dealings, the lack of proportionality that typically characterise vexatious requests.” (para 45). Arden LJ in the CA also emphasised that a “rounded approach” is required (para 69), and all evidence which may shed light on whether a request is vexatious should be considered.

The UT set out four non-exhaustive broad issues which can be helpful in assessing whether a request is vexatious:

The burden imposed on the public authority by the request. This may be inextricably linked with the previous course of dealings between the parties. “…the context and history of the previous request, in terms of the previous course of dealings between the individual requester and the public authority in question, must be considered in assessing whether it is properly to be characterised as vexatious. In particular, the number, breadth, pattern and duration of previous requests may be a telling factor.” (para 29).

The motive of the requester. Although FOIA is motive-blind, “what may seem like an entirely reasonable and benign request may be found to be vexatious in the wider context of the course of dealings between the individual and the relevant public authority.” (para 34).

The value or serious purpose. Lack of objective value cannot provide a basis for refusal on its own, but is part of the balancing exercise – “does the request have a value or serious purpose in terms of the objective public interest in the information sought?” (para 38).

Any harassment of, or distress caused to, the public authority’s staff. This is not necessary in order for a request to be vexatious, but “vexatiousness may be evidenced by obsessive conduct that harasses or distresses staff, uses intemperate language, makes wide-ranging and unsubstantiated allegations of criminal behaviour or is in any other respects extremely offensive.” (para 39).

Overall, the purpose of section 14 is to “protect the resources (in the broadest sense of that word) of the public authority from being squandered on disproportionate use of FOIA” (UT para 10), subject always to the high standard of vexatiousness being met.

EIR

The IC decided that part of the request was for environmental information and should, therefore, have been dealt with pursuant to EIR. We agree.

EIR defines environmental information thus:

“environmental information” has the same meaning as in Article 2(1) of the Directive, namely any information in written, visual, aural, electronic or any other material form on—

the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);

measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;

reports on the implementation of environmental legislation;

cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and

the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c);”

Regulation 12 EIR provides relevantly as follows:

“Exceptions to the duty to disclose environmental information

12.— (1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if—

an exception to disclosure applies under paragraphs (4) or (5)…

For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that—…

the request for information is manifestly unreasonable”

In Dransfield, the Court of Appeal held that the tests as to whether a request is “vexatious” under s14 FOIA and “manifestly unreasonable” under Regulation 12(4)(b) EIR have, to all intents and purposes, the same meaning.