FT/EA/2025/0159 - [2025] UKFTT 01125 (GRC)

The Appellant appealed on 09 April 2025.

The Grounds of Appeal were, in essence, that:

The Commissioner’s response, dated 12 June 2025, maintained that the Decision Notice was correct.

The Commissioner stated that he could not comment on the approach taken by the MoD and instead had to consider the request and the FCDO’s response on its own merits. He was also satisfied by the information provided by the FCDO that the MoD’s guide was pre-prepared for release, whereas their one was not. He also noted that the Appellant’s arguments about the public interest in the information provided by the MoD did not alter his findings in this case that there was unlikely to be a significant public interest in the minimal information suitable for disclosure following redaction by the FCDO, and he remained satisfied that the burden of compliance would outweigh the public interest.

The Commissioner maintained that section 14(1) applied on the grounds of resources alone to show that the request was vexatious due to the oppressive burden compliance that would be imposed on the public authority.

The FCDO resists the appeal and submits that complying with the request would impose a grossly oppressive burden on its resources and would be of limited public interest, given the significant amount of material that would be exempt from disclosure under alternative FOIA exemptions.

In essence, the FCDO’s response was:

The relevant provisions of FOIA are as follows:

The FOIA does not provide any assistance as to what is meant by ‘vexatious’. The Upper Tribunal gave guidance in Information Commissioner v Devon County Council and Dransfield [2012] UKUT 440 (AAC), as upheld and clarified by the Court of Appeal in Dransfield v Information Commissioner and Devon County Council [2015] EWCA Civ 454.

As noted by Arden LJ in her judgment in the Court of Appeal 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).

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

It was noted by Judge Wikeley in the Upper Tribunal in Dransfield that “…one particular factor alone, present to a marked degree, may make a request vexatious even if no other factors are present” (para 43).

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” (Upper Tribunal, para 10).

In the Upper Tribunal in Dransfield, Judge Wikeley referred with approval to the Upper Tribunal decision in Wise v Information Commissioner (EA/2010/0166), namely that “Inherent in the policy behind section 14(1) is the idea of proportionality. There must be an appropriate relationship between such matters as the information sought, the purpose of the request, and the time and other resources that would be needed to provide it” (para 49).

The Upper Tribunal confirmed in Cabinet Office v Information Commissioner and Ashton [2018] UKUT 208 at paragraph 27 that “The law is thus absolutely clear. The application of section 14(1) of FOIA requires a holistic assessment of all the circumstances. Section 14 may be invoked on the grounds of resources alone to show that a request is vexatious. A substantial public interest underlying the request for information does not necessarily trump a resources argument”.

The Tribunal’s remit is governed by section 58 of 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 an exercise of his discretion, whether he ought to 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.

The issue for the tribunal to determine is whether the Information Commissioner’s Decision Notice was in accordance with the law and whether the Information Commissioner was correct in upholding the decision of the FCDO to rely on section 14(1) in refusing to respond to the Appellant’s request.

We read and took account of the following material:

We also heard open and closed evidence from Stewart MacLeod on behalf of the FCDO, and oral submissions on behalf of the Appellant and the FCDO.

Having considered the authorities outlined above, we are satisfied that, in deciding whether a request is vexatious, all of the relevant circumstances must be considered in order to reach a balanced conclusion. The burden which compliance with the request will impose on the resources of a public authority is a relevant consideration in such an assessment and may, in some cases, be sufficient in itself to justify characterising a request as vexatious. However, we recognise that there is a high threshold to be passed in refusing a request on this ground.

The Tribunal considered the non-exhaustive list of issues as set out by the Upper Tribunal in Dransfield and the overall circumstances of the case. The FCDO has not sought to address us in relation to the motive of the Appellant or to allege any harassment of or distress caused to its staff, and so we have focused our deliberations on the burden imposed on the FCDO by the request and on the value or serious purpose of the request.

The burden imposed on the FCDO by the request is the key factor that is relied upon by the FCDO.We note that, whilst the mere fact that responding to a request may be burdensome, that in itself does not absolve the FCDO from their legal obligations under FOIA. In assessing the burden imposed on the FCDO, we have considered the three factors that have been identified by the Commissioner as being particularly relevant (see paragraph 20 above), and deal with them each in turn.

We are satisfied that a substantial volume of information is sought by the Appellant. We note that the Manual runs to 178 pages, with approximately 100 separate sections of information.

Having viewed the content of the Manual and recognising its intended use by sensitivity reviewers of government documents, we accept that the FCDO’s concerns about potentially exempt information are valid and substantial. We accept the information provided by the FCDO that, in order to assess disclosure, it is likely that at least thirteen potential exemptions would need to be considered and may be applicable.

Having viewed the contents of the Manual and heard evidence from Stewart MacLeod, we are satisfied that it would not be possible to easily and quickly isolate information that may be suitable for disclosure as the sensitive information is embedded throughout the entire document in the form of topic-specific guidance entries.

When assessing the burden that compliance would place on the FCDO, we also accept the following evidence of Stewart MacLeod that:

We are satisfied that there is a clear public interest in transparency and accountability of government actions and decisions. However, we accept the submissions on behalf of the FCDO that the public interest in this case is diminished by the fact that, after any appropriate redactions, the volume of information that would be suitable for disclosure would be minimal. We are also satisfied that, even if that were not the case, the public interest argument in this particular case would not outweigh the argument that the request is vexatious on the grounds on the burden that would be imposed by compliance.

We have carefully considered the Appellant’s submissions relating to the comparisons that should be drawn between the approach taken by the MoD, the Commissioner’s view of the approach taken by the Cabinet Office, and the current situation. The Appellant submits that, if the MoD are able to redact and release their version of a sensitivity manual, then the FCDO should be able to do the same. We do not find this to be a compelling submission for a number of reasons. Firstly, the MoD manual was pre-prepared for release whereas the FCDO Manual was not pre-prepared and therefore the work required prior to disclosure is not comparable. Secondly, we accept the evidence of Stewart MacLeod that the nature of the two documents are significantly different – the MoD document is focused more on process whereas the FCDO Manual directly relates to sensitivities – and therefore the comparators are not equal. Thirdly, we accept the evidence that the way in which each government department approaches the question of sensitivity reviews will vary and thereby the way in which another government department has dealt with any request made to them for such information is of very limited relevance. The relevant considerations for the Tribunal solely relate to the approach taken by the FCDO.

The Appellant referred us to the Commissioner’s Decision Notice dated 28 July 2023, reference IC-336388-V0P8, in which the Commissioner held that the Cabinet Office was not entitled to rely on section 14(1) of FOIA to refuse a request that was made for their guidance manual issued to sensitivity reviewers. In his submissions, the Appellant asserted that, if the Cabinet Office were not permitted to rely on section 14(1) in relation to a similar request, then the position should be the same for the FCDO.

We do not accept this submission. This Tribunal is evidently not bound by a Decision Notice of the Commissioner in another case and, in any event, it is apparent from the Decision Notice that an equal comparison cannot be drawn between the two documents. As previously noted, we are not assisted by the approach taken in cases involving other government departments and instead determine this case solely on its own merits.

Taking into account all of the circumstances of this case, we are satisfied that the burden of compliance on the FCDO can be properly categorised as grossly oppressive. As such, we are satisfied that the Commissioner was correct in finding that the FCDO was entitled to rely on section 14(1) of FOIA to refuse the Appellant’s request.

The Tribunal dismisses the appeal for the reasons given above.