Vexatious and irresponsible questions
I know from personal experience that making freedom of information requests to public authorities is something they sometimes find irritating - but at what point does it become vexatious or irresponsible?
This question is raised by some recent rulings on what constitutes legitimate use of the Freedom of Information Act.
In a decision published last week, the information commissioner determined that the local government ombudsman was right to dismiss an FOI request as 'vexatious'. This was the 48th request in a series made to the LGO by one individual in a six-month period.
The complainant is clearly concerned about the effectiveness of local authority complaints procedures, having submitted hundreds of FOI applications on the topic to various authorities. However the commissioner found his arguments "unconvincing" and "not considered to be properly anchored in sound evidence", concluding that the "the request could fairly be considered obsessive and manifestly unreasonable" and was therefore vexatious.
Under the FOI Act, a request can be refused if it's vexatious, but this has to be an issue about the request itself, not the person making it. Just because you are a really annoying person is not sufficient grounds for turning down your freedom of information applications.
In this case the request, along with many other requests by the same person, was made through the whatdotheyknow site. This site is certainly regarded as very vexing by numerous public authority FOI officers, who particularly don't like the way it automatically publishes all the correspondence in connection with a request.
In a different case, the High Court has just ruled that there is nothing necessarily wrong in making a meta-request - a request about how your other requests have been handled. The journalist Matt Davis put such a question to the Home Office, suspecting that he was getting worse treatment than the general public in the 48 requests he'd made to the Home Office (this was over a two-year period).
The Home Office argued that such meta-requests "are an arguably permissible, but irresponsible, use of the Act" which "could be used as a 'backdoor method' of obtaining information which had previously been withheld." But these arguments were rejected by the judge, who backed the earlier opinion of the Information Tribunal
that "meta-requests should be dealt with in the same way as any other requests".
So if your FOI request is turned down as vexatious, is it irresponsible to put in a meta-request about how it was handled?
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If the information was available in the first place then people wouldn't need to make expensive FOI claims to find out what OUR Government is doing. Open up the windows and let the "court of public opinion" in. Or would that show just how badly run the whole thing is?
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Sometimes irresponsible journalists organise a campaign of FOI requests from local authorities. These fishy requests waste valuable resources as the council has under the law got to spend up to the same time on handling each one.
Under such circumstances it is only right that the council can regard these claims as vexatious and refuse to handle them.
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There is an issue with Council complaint systems as they enable 'market' forces to affect the monopoly's that are Council's (as run by the political parties). If the complaint systems don't work..
Under s50(2)(c) the ICO is unable to issue a decision notice if the application is frivolous or vexatious. The Information tribunals definition of vexatious that it has adopted is based on there not being maladministration (and only an Ombudsman can determine this). There are two discretionary decisions.. maladministration (LGO) and vexatious (ICO) that are based on understandings of the terms that have never been determined.
I'm certain that the issues have been appealed to the Information tribunal.
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I'd be concerned if there's not a clear legal definition of the term "vexatious" in this context. If not, it would seem this is an easy way for the government to get out of revealing anything they don't feel like telling us. A bit like concerns over policemen having the right to pull over anybody they think is "suspicious".
If not carefully monitored it could be open to all sorts of abuse. Difficult question from the public? Call it "vexatious" and put a permanent block on anybody ever getting to access the details.
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You also need to take account of the fact that under s76 of the FOIA and Schedule 7 the work of the Information Commissioner and Ombudsmen are linked. There has as yet been no disclosure of information between the two (as identified in one of the FOI requests to the LGO).
However, there has been a finding of maladministration causing injustice by the LGO against Basildon Council involving ROMA based on different people than those subject to an investigation by the ICO submitting a complaint to the LGO. Basildon Council rejected the LGO's findings.. and it is understood the issues are progressing to High Court.
In relation to another FOI request to the LGO the Minister has actually been required to manufacture information to identify that they have a right to claim a s36 exemption.
The Minister on 30th June identified that: 'It is for each local authority to ensure it has in place its own robust systems for handling complaints, including recording data about complaints, as recommended in the guidance on running a complaints system issued by the local government ombudsman.'
The robust systems in place for about 40 Council's is no retention of complaints data... and about 80 per cent of the Council's that maintain records have different recollections of Ombudsman's determinations than the Ombudsman. None of about 60 Council's have produced a monitoring officers report as required by the Local Government Act.. despite the LGO identifying that they had committed maladministration.
There were about 390 Council's in England.. most don't have functioning complaints systems.. (and most don't have any management information on which to base decisions) so how can they have functioning FOI systems ?
The problem is that neither Council's or their regulators (ICO and LGO) have determined the required standards and made them into standards by requiring their adoption..
and the issues are disguised by Parliament requiring the LGO to determine the meaning of maladministration and the ICO to determine the meaning of vexatious.. The Courts have since the 1970s identified that the term maladministration is of significance.. but have never identified to either the Parliamentary Ombudsman or Local government Ombudsman what it means.. and under the law you can't challenge the Ombudsman's understanding of maladministration (this is despite one of the LGO's having about 100 findings of maladministration and injustice against themselves and Council (Hackney).. and the Ombudsman's understanding of the term changing as a consequence.
These are substantive issues ?
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Do I detect a vexatious individual here.....
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So the commisioner looked at a decision by a local government ombudsman. Heard the both sides of the story and ruled in favour of one side (the Local government). Boo hoo. It happens. Live with it.
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The provision of s14 FOIA according to the Information Tribunal 'is to ensure: that applicants for information did not as a result of their unreasonable requests either jeopardise sound and effective administration within public institutions or otherwise unjustly harassed public officials' [EA/2008/0046]
Now I would seriously ask you what is unreasonable about the LGO providing statistics on how many complaints it had received about Council Social Service Departments over the last ten years with the LGO's own statistical findings of the results of their investigations.... particularly as there are questions
http://www.number10.gov.uk/Page19548
.. and if you take into account that one of the current LGO's (former CEO for Harrow) was unable to investigate Tower Hamlets Council due to their special friendship with its CEO - who just now happens to be the Head of Ofsted.. and is now married to the Minister of State (Employment and Welfare Reform; Minister for London) and is also an Harrow MP.
...and that the LGO relaunched their website in january 2009 and made available a lot of information that had previously been unavailable (subject to a large number of FOI's) whilst also removing a lot of information. well ...
is that vexatious of the LGO ?
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Just so it is clear a request can be classed at vexatious if it can be demonstrated that the requestor has made so many requests that it is stopping a public official from doing their job. This guidance was given by the then Lord Chancellors Department in 2000.
Chapter 03: The limits of your duty to answer requests
http://www.foi.gov.uk/guidance/proguide/chap03.htm
Repeated and vexatious requests
A number of requests under the Act are very broad requests for information and they may not describe the information that is sought sufficiently precisely to enable you to identify and locate the information. If the request is too broad or general in nature (eg. seeks all information on a topic over many years) you have a duty to provide advice and assistance to the applicant in order to focus the request. More information on advice and assistance can be found in the section in the relevant section of the Guidance. But the breadth of a request is not in itself an automatic reason to refuse it (although cost considerations might well be relevant here).
Vexatious requests may be difficult to spot and specialist advice should be sought if you consider treating a specific request as vexatious. Repeated and vexatious requests are a different matter - there is no duty under the Act to comply with a request that is repeated or vexatious (s.14):
Repeated requests If a public authority has previously complied with a request for information that was made by a person, does not need to comply with a repeated request from the same person (i.e. an identical or substantially similar request) unless a reasonable period of time has elapsed between compliance with the first request and receipt of the second.
The term "a reasonable interval" is not defined in the Act and in the first instance this is for the public authority to determine, depending on the type of information sought and any advice provided to the applicant by the public authority in response to their previous request. Much will also depend on the nature of the public authority's business. For example, if it regularly updates records, it might be reasonable for an applicant to make requests for information more often. If the applicant disputes the public authority's definition of a "reasonable interval" in respect of their application, they may complain to the Information Commissioner.
A vexatious requestis determined by the information requested, not the person making the request. An individual cannot be classified as a vexatious requestor. An individual can make as many requests for information as he/she wishes, and cannot be labelled as vexatious - each of their requests must be determined on a case-by-case basis - but the provisions on aggregating the costs of these requests may be relevant.
Vexatiousness needs to be assessed in all the circumstances of an individual case, but if a request is not a genuine endeavour to access information for its own sake, but is aimed at disrupting the work of an authority, or harassing individuals in it, then it may well be vexatious.
There are a number of ways in which it may be possible to identify individual requests as being vexatious. The following list is not designed to be exhaustive, but rather to illustrate a general approach:
The applicant makes clear his or her intention: If an applicant explicitly states that it is his or her intention to cause a public authority the maximum inconvenience through a request, it will almost certainly make that request vexatious.
The authority has independent knowledge of the intention of the applicant: Similarly, if an applicant (or an organisation to which the applicant belongs, such as a campaign group) has previously indicated an intention to cause a public authority the maximum inconvenience through making requests, it will usually be possible to regard that request as being vexatious.
The request clearly does not have any serious purpose or value. It will usually be easier to recognise such cases than define them. Although the Act does not require the person making a request to disclose any reason or motivation, there may be cases which are so lacking in serious purpose or value that they can only be fairly treated as "vexatious" - for instance a request for the number of unmarried employees an organisation may have, may be able to be classified justifiably as a vexatious request. Such cases are especially likely to arise where there has been a series of requests. Before reaching such a conclusion, however, a public authority should be careful to consider any explanation which the applicant gives as to the value in disclosing the information which may be made in the course of an appeal against refusal (see below).
The request can fairly be characterised as obsessive or manifestly unreasonable. It will usually be easier to recognise such cases than define them. They will be exceptional - public authorities must have valid reasons for making such a judgement. An apparently tedious request, which in fact relates to a genuine concern, must not be dismissed. But a public authority is not obliged to comply with a request which a reasonable person would describe as obsessive or manifestly unreasonable. It will obviously be easier to identify such requests when there has been frequent prior contact with requester or the request otherwise forms part of a pattern, for instance when the same individual submits successive requests for information. Although such requests may not be "repeated" in the sense that they are requests for the same information taken together they may form evidence of a pattern of obsessive requests so that an authority may reasonably regard the most recent as vexatious
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Vexatious? It rolls around the tongue nicely doesn't it Martin?
I never did become - vexatious. But oddly - if I had listened to my nearest and dearest - "ask them again" she kept (and keeps) encouraging me. The Local Council. The Information Commission etc etc.
I took the "No" to the original requests and the "No" to the Appeal on face value. And stopped asking.
And to be fair to her - the wife is from a country where openness is a fact - not just an aspiration like it is in this country.
An aspiration with a whole Office you can protest to and the FOI Act to pretend it is real!
At the moment the BBC is running adverts for a season on older age - where "actors" show the aging process speeded up.
They look much older very quickly. I wished I had a photograph of me when I started our correspondence, Martin. I bet you I have a few more lines in the old "boat race".
Or is to say so - vexatious?
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The Lord Chancellors approach appears perfectly reasonable to me, although noted to be in 2000... and that Local Authority records are not public records... and that DCLG as the relevant sponsoring minister has identified that one of the four grounds for identifying local government records is the LGO (commission for local administration in england)
http://www.communities.gov.uk/localgovernment/360902/constitutionsandethics/constitutionalarrangements/guidanceproper/
The LGO have a dedicated member of staff for FOI (as identified by Job Title).. the LGO also has a publication scheme.. and the problem has been that the LGO has not followed its publication scheme.. and that Local Government identifies that the LGO is its data archive... (and amazingly enough their records are different to the LGO's)..
Public records were introduced to control the crown.. and its servants.. now that local government is controlled by the political parties.. and they have since 1947 controlled development of land (one of the causes of England's civil wars and the reason that the modern Parliament was introduced).. it is in the interest of the political parties to ensure that there is no record..
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I'm one of the people who runs the WhatDoTheyKnow website.
A quick note that the blog post linked to from "This site is certainly regarded as very vexing by numerous public authority FOI officers" is a year old. I think FOI officers have better understanding of the value of the site now. We have made many changes to improve the site in response to feedback from officers and requesters, and will continue to do so. Please do tell us about problems.
As for vexatious requests... One of the nice things about WhatDoTheyKnow is that anyone can see the full set of requests and make up their own mind.
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12 Frabcus
The What Do The Know website is great. I have only ever asked one single FOI request and your web-site made it easy.
Having said that - I am finding the response from government extremely vexatious - I was due a response on 28th May and I've still received nothing other than "we are dealing with your query" type notices, despite me politely prompting them.
They promised me they would keep me up to speed if there were any further delays - which they then failed to do.
I don't mind a request taking longer than the 28 days, but I do not like being on the receiving end of poor communication. It makes me think that government are trying to cover things up. If I was feeling more paranoid, that might cause me to ask a flurry of vexatious questions on the specific subject they have been failing to deal with adequately in the first place.
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While it is true to say that dealing with any civil servant is likely to raise the blood pressure somewhat, interactions with FoI officers tend to heart-attack-inducing.
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governments collect entirely too much information, makes entirely too little avilable to the public and feel threatened when anyone might ask what is going on. Too bad no FOI was made concerning banking schemes or the political votes to allow them. I think the Hitchhikers Guide to the Galaxy captured the situation when describing Auther asking about notification about the plans to destroy his house and later the planet....downstairs...in the dark....in a cabinet...guarded by a lion...something like that. Citizens can be such a problem.
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re post by turtlestu
Section 46 of the FOIA actually helps define public records and does actually capture with the guidance of the Public Record Offive that Local Govt records are public records. The councils dont like it but the only public bodies that are legally outside of the FOIA remit are MI5 MI6 and the SAS/SBS!!
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Fed up with the local government ombudsman (LGO) and all the incompetence they help cover up ? Why not sign the petition @ http://petitions.number10.gov.uk/Scrap-LGO/ ??
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In my experience, having recently worked in a country that's far ahead of the UK - Australia - a massive part of the problem with the UK legislation is the lack of hard definitions, using phrases such as "reasonable period of time" and not having any real central laws on government office record-keeping, just 'guidance' from The National Archive, which does not have to be followed as it is not law. Leaving each department or council to define their own rules has proven to be a complete mess and utterly unworkable, with huge variations in standards. I am a records management contractor, so have seen the inside of various public and private sector records management systems. One government department I've worked for was excellent and used a very well known records management system to strictly control and easily retrieve their data. A couple of councils I've been at have used spreadsheets edited over very shaky thin-client networks which often went down for hours on end, leaving the civil servant with no ability to do any work electronically.
There becomes a need for central goverment to grab the bull not by the horns, but by the balls, and indeed grow a set of its own.
These laws need to be fixed with better, strictly-defined terminology and time limits instead of the usual vague wafting of a hand towards openness encased in layers of bureaucracy, cover-ups and stalling that characterises the powers that be, whichever party they belong to.
But heaven forbid they should actually do something to earn all that tax money and spend it wisely, eh?
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