Gov641 Handling FoI requests for industry sector panel members fees
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Last updated 07 February 2014
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5 February 2014. You asked for copies of all information contained within emails that make reference to the FOI requests made by members of the public seeking details of the fees and expenses paid to industry sector panel members.
24 February 2014
Dear ,
Complaint in respect of request for information – reference ATISN 8082
I wrote to you on 13 February to acknowledge that I would be dealing with your complaint regarding your request for information as an Internal Review under the Welsh Government’s Code of Practice on Access to Information.
I note that in your request you asked for all emails that make reference to the FOI requests made by members of the public seeking details of the fees and expenses paid to industry sector panel members.
On 5 February, you were advised that your latest request was refused on the grounds that it was considered a vexatious request. In your complaint, you state “The fact that I believe you are incorrectly refusing my FOI requests does not mean they are ‘Vexatious’.”
I have considered the detailed explanation you received about why your requests were refused on vexatious grounds. I have also considered guidance from the Information Commissioner’s office regarding the use of ‘vexatious’ under Section 14(1) of the Freedom of Information Act 2000 (FOIA). In addition, I have further taken into account my letter to you of 19 December, 2013 regarding my review of your previous request reference ATISN 7867.
I have reviewed all of the considerations given to your latest request and the reply you received. I have carefully considered the weight, purpose and value of your request (in terms of the public interest) as well as the wider history of your requests against the detrimental effect on the Welsh Government in terms of the impact it would have on resources in dealing with it. Whilst I acknowledge that the Welsh Government has an obligation to answer requests for information, there is also a requirement to protect public resources from requests which are persistent, frequent and overlapping where the serious purpose of the request is not in the wider public interest.
In this case, I am in agreement that the public interest in this information is low and that the request is born out of your own personal desire to investigate how the requests have been handled. With this in mind, and having regard to the balancing exercise of serious purpose and value of your request weighed against the detrimental effect on the Welsh Government, I am satisfied that your latest request is a vexatious request within the meaning of s14(1) of the FOIA. To that end, I do not uphold your complaint.
Any information released under the Freedom of Information Act 2000 or Environmental Information Regulations 2004 will be listed in the Welsh Government’s Disclosure Log.
If you believe that I have not followed the relevant laws, or you are unhappy with this response you have the right to complain to the Information Commissioner. The Information Commissioner can be contacted at:
Information Commissioner’s Office,
Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF
Tel. 01625 525747
Fax. 01625 525510
Email: casework@ico.gov.uk
Also if you think that there has been maladministration in dealing with your request then you may make a complaint to the Public Services Ombudsman who can be contacted at:
Public Services Ombudsman for Wales,
Ffordd yr Hen Gae, Pencoed, Bridgend CF35 5LJ
Yours sincerely
Mick McGuire
Director, Sectors and Business
5 February, 2014
Dear ,
Request for Information – ATISN 8082
I wrote to you on 15 January regarding your request for information. You asked for all emails that make reference to the FOI requests made by members of the public seeking details of the fees and expenses paid to industry sector panel members.
I have given careful consideration to your latest request for information and I have decided not to deal with it on the grounds that it is vexatious.
Section 14(1) of the Freedom of Information Act 2000 (FOIA) states:
Section 1(1) does not oblige a public authority to comply with a request for information if the request is vexatious.
‘Vexatious’ is not defined within the FOIA. However, in the leading case of Information Commissioner v Devon County Council & Dransfield [20120 UKUT 440 (AAC), (28 January 2013), the Upper Tribunal took the view that the ordinary dictionary definition of the word vexatious is only of limited use, because the question of whether a request is vexatious ultimately depends upon the circumstances surrounding that request (“Vexatious” is a protean word, i.e. one that takes its meaning and flavour from its context” para 24). The Tribunal concluded that ‘vexatious’ could be defined as “…manifestly unjustified, inappropriate or improper use of a formal procedure”, though they also conceded it was “an inherently flexible concept which can take many different forms” (para 28).
In deciding that your request is vexatious, I have taken into consideration the full history of your information requests to the Welsh Government. This is consistent with the Tribunal’s reasoning in Dransfield:
“Thus the context and history of the particular 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).
In Dransfield, the Tribunal recognised that requests made under the FOIA are both “motive blind” and “applicant blind” and that there is no requirement for a requestor to provide any reason for making a request for information under its provisions. However, it went on to recognise that the proper application of section 14 cannot side-step the question of the underlying rationale or justification for the request. They went on to state that, in this context,
“it is important to bear in mind that the right to information under FOIA is a significant but not an overriding right in a modern democratic society. As has already been noted, it is a right that is qualified or circumscribed in various ways. Those restrictions reflect other countervailing public interests, including the importance of an efficient system of public administration. Thus section 14 serves the legitimate public interest in public authorities not being exposed to irresponsible use of FOIA, especially by repeat requesters whose inquiries may represent an undue and disproportionate burden on scarce public resources” (para 35).
In relation to this, in Independent Police Complaints Commission v Information Commissioner the First Tier Tribunal found
“Abuse of the right to information under s.1 of FOIA is the most dangerous enemy of the continuing exercise of that right for legitimate purposes. It damages FOIA and the vital rights that it enacted in the public perception. In our view, the ICO and the Tribunal should have no hesitation in upholding public authorities which invoke s.14(1) in answer to grossly excessive or ill-intentioned requests and should not feel bound to do so only where a sufficient number of tests on a checklist are satisfied.” (para 19).
In Dransfield, the Tribunal also referred to the earlier case of Lee v Information Commissioner and King’s College Cambridge and agreed with the overall conclusion that “vexatious” connotes a “manifestly unjustified, inappropriate or improper use of a formal procedure”.
Guidance from the Information Commissioner on vexatious or repeated requests explains that “Section 14(1) is designed to protect public authorities by allowing them to refuse any requests which have the potential to cause a disproportionate or unjustified level of disruption, irritation or distress”. The guidance also suggests that when considering the application of Section 14(1), overall consideration should be given to the serious purpose and wider public interest/objective value of the request as weighed against the detrimental effect on the authority, and/or evidence that the requester is abusing the right of access to information. In considering this advice, I am of the opinion that dealing with your request would be likely to cause a disproportionate and unjustified level of disruption to the Welsh Government.
For the purpose of identifying potentially vexatious requests, the Information Commissioner’s Guidance sets out a series of indicators (albeit not a definitive or limiting list) which demonstrate typical key features of a vexatious request. The Guidance also allows public authorities to take into account the wider context and history of the request. I have therefore taken into account the context and history of your request and have given consideration to the following headings/indicators within the Guidance:
• Burden on the authority
• Frequent and overlapping requests
• Unreasonable persistence
• Futile requests
I have outlined below my full reasoning for reaching this decision under the relevant indicator descriptors. There is a natural overlap between some of the arguments and the decision has been based on the cumulative argument.
Burden on the authority
Your request is part of a series of requests from 4 individuals regarding the fees and expenses paid to Sector Panel members, the first of which was received in October 2013. Some individuals have submitted more than one request. Due to the wording of the requests, the proximity in the timings and the fact that they were mostly received from the same source, I believe that these requests are linked. For every request that has been responded to, an internal review has subsequently been requested. Some internal reviews have been responded to; others are still underway. Dealing with the requests and complaints has generated a large amount of internal correspondence between relevant officials and to locate and prepare this information for potential release (in terms of presentation and redactions) would present us with a significant burden on official’s time. When considering whether the purpose of the request or wider public interest in the information justifies the impact on the public authority, the Information Commissioner’s Guidance explains that it is key to weigh these considerations against the distress, disruption or irritation that would be incurred by complying with that request, including any relevant considerations concerning the requestor’s motives. In this case, I believe the public interest in this information is low and that the request is born out of the requestor’s own personal desire to investigate how the requests have been handled. I believe that this is an example of the sort of ‘ill intentioned’ request that the Information Tribunal has identified and I believe that your use of the Act in this manner amounts to an “inappropriate or improper use of a formal procedure” as further identified by the Tribunal.
Frequent and overlapping requests
As explained above, your request is part of a series of requests from 4 individuals, the first of which was received in October 2013. Some individuals have submitted more than one request. The wording of the requests, the proximity in the timings and the source, together with the subsequent requests for internal review in each case, including your own, have been very frequent and in most cases we have been asked to conduct internal reviews whilst simultaneously responding to new requests. I am of the opinion that your request is the latest in a series of these frequent and overlapping requests.
Unreasonable Persistence
I believe that in submitting your request, there is evidence of unreasonable persistence on your part, in that you are attempting to keep alive issues which have already been addressed in our responses to each of the requests and internal reviews. As stated above, I believe your request is born out of your own personal interest and desire to investigate the background as to how the requests have been handled. Accordingly, I believe the public interest in this information is low and, having expended such a significant amount of public resource on these matters already, I am of the opinion that it would be disproportionate to look for this further information.
Futile Requests
The guidance under this indicator suggests that “the issue at hand individually affects the requester and has already been conclusively resolved by the authority or subjected to some form of independent investigation” . For every request that has been received, including your own, the Welsh Government has conducted an independent Internal Review As explained above, it is our belief that your current request is an attempt to obtain information in order to re-open an issue that has been concluded via sight of the internal correspondence and discussions that informed those decisions. Also as explained above, I consider that the interest in this information is specific to yourself and the lack of any obvious public interest means that I cannot justify the impact on the resources of the Welsh Government that would occur if your request was dealt with.
To conclude, and in consideration of the balancing exercise of serious purpose and value of the request weighed against the detrimental effect on the Welsh Government, I believe this request is a vexatious request within the meaning of s14(1) of the Freedom of Information Act. Accordingly, I have refused to deal with it on that basis.
Any information released under the Freedom of Information Act 2000 or Environmental Information Regulations 2004 will be listed in the Welsh Government’s Disclosure Log.
If you believe that I have not followed the relevant laws, or you are unhappy with this response, you may request an internal review by writing to:
Mick McGuire, Director, Sectors and Business
Department for Economy, Science and Transport
QED Centre, Treforest Industrial Estate, Pontypridd CF37 5YR
When dealing with any concerns, I will follow the principles set out in the Welsh Government’s Code of Practice on Complaints which is available on the Internet at http://www.wales.gov.uk or by post.
You also have the right to complain to the Information Commissioner. Normally, however, you should pursue the matter through our internal procedure before you complain to the Information Commissioner. The Information Commissioner can be contacted at:
Information Commissioner’s Office
Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF
Tel: 01625 545 745
Fax: 01625 524 510
Email: casework@ico.gsi.gov.uk
Also, if you think that there has been maladministration in dealing with your request then you may make a complaint to the Public Services Ombudsman for Wales who can be contacted at:
Public Services Ombudsman for Wales,
Ffordd yr Hen Gae, Pencoed, Bridgend, CF35 5LJ
Yours sincerely
Sectors and Business
Department for Economy, Science and Transport
Welsh Government
