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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Dransfield & Anor v The Information Commissioner & Anor [2015] EWCA Civ 454 (14 May 2015) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2015/454.html Cite as: [2015] 1 WLR 5316, [2015] WLR(D) 215, [2015] WLR 5316, [2015] EWCA Civ 454, [2016] 3 All ER 221, [2016] Env LR 9 |
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ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Judge Wikeley
[2012] UKUT 440 (AAC)
[2012] UKUT 442 (AAC)
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE GLOSTER
and
LADY JUSTICE MACUR
____________________
(1)![]() ![]() |
Appellant |
|
and – The Information Commissioner |
First Respondent |
|
Devon County Council |
Second Respondent |
|
(2) Craven - and - The Information Commissioner The Department for Energy and Climate Change |
Appellant First Respondent Second Respondent |
____________________
(Transcript of the Handed Down Judgment of
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Dransfield
was represented during the course of the hearing by Mr David O'Mahony (instructed through the Bar Pro Bono Unit) and now acts for himself as a litigant in person
Mr Tom Cross (instructed by Information Commissioner's Office) for the First Respondent
Ms Rachel Kamm (instructed by Devon County Counsel) for the Second Respondent in Dransfield
(2) The Appellant appeared in person in Craven
Mr Tom Cross (instructed by Information Commissioner's Office) for the First Respondent
Mr James Cornwell (instructed by the Government Legal Department) for the Second Respondent in Craven
Hearing dates: 27- 28 January 2015
____________________
Crown Copyright ©
LADY JUSTICE ARDEN :
IMPORTANT ISSUES RAISED BY THESE APPEALS
153 The Freedom of Information Act 2000 was a landmark enactment of great constitutional significance for the United Kingdom. It introduced a new regime governing the disclosure of information held by public authorities. It created a prima facie right to the disclosure of all such information, save in so far as that right was qualified by the terms of the Act or the information in question was exempt. The qualifications and exemptions embody a careful balance between the public interest considerations militating for and against disclosure. The Act contains an administrative framework for striking that balance in cases where it is not determined by the Act itself. The whole scheme operates under judicial supervision, through a system of statutory appeals.
THESE APPEALS IN A NUTSHELL
(A) REQUESTS, IC REVIEWS AND PREVIOUS APPEALS
History of Mr Dransfield
's request
- From the period 9 February 2005 to 25 June 2005, there was one FOIA request made on 11 February 2005 concerning "the Lafarge Concrete Scandal", and 16 items of correspondence on the same subject.
- From the period 1 December 2005 to 11 March 2007, there were three FOIA requests concerning the safety and LPS in relation to a pedestrian bridge at a private finance initiative ("PFI") site, and 6 items of correspondence on the same subject.
- From the period 28 January 2008 to 28 May 2009, there were 18 items of correspondence concerning health and safety files for PFI and LPS. There were 6 FOIA requests on the same subject.
We accept that there is a link between the subject matter of the present request and the Appellant's previous requests in that they have all concerned safety issues and that most have concerned LPS. However, we do not consider that this similarity of subject matter is enough for this request to be seen as a continuation of the previous requests and thus infected by the history of those requests. It must often be the case that people will want to make a number of different requests on broadly the same subject area. Journalists and other types of researchers must do so frequently. Apart from the cost considerations in section 12, there is nothing in FOIA that is hostile to this. (FTT,Dransfield
, Judgment, para. 38)
Decision of the UT in Mr Dransfield
's case
What is a "vexatious" request under section 14 of FOIA?
24. "Vexatious" is a protean word, i.e. one that takes its meaning and flavour from its context. I therefore accept Mr Cross's primary submission that the term in section 14 carries its ordinary, natural meaning within the particular statutory context of FOIA. It follows, I believe, that the ordinary dictionary definition of "vexatious" as "causing, tending or disposed to cause … annoyance, irritation, dissatisfaction, or disappointment" can only take us so far. I accept as a starting point that, depending on the circumstances, a request which is annoying or irritating to the recipient may well be vexatious – but it all depends on those circumstances.
25. In particular, we must also not forget that one of the main purposes of FOIA is to provide citizens with a (qualified) right to access to official information and thus a means of holding public authorities to account. It may be both annoying and irritating (as well as both dissatisfying and disappointing) for politicians and public officials to have to face FOIA requests designed to expose possible or actual wrongdoing. However, that cannot mean that such requests, properly considered in the light of all the circumstances and the legislative intention, are necessarily to be regarded as vexatious….
26. With that qualification in mind, I consider that the IC's Guidance that "the key question is whether the request is likely to cause distress, disruption or irritation, without any proper or justified cause" provides a useful starting point, so long as the emphasis is on the issue of justification (or not). The fact that the OED definition omits any reference to "distress" or "disruption" in quite those terms is no bar. This is because the inclusion of these terms in the IC's Guidance is justified by extension, given that the purpose of section 14 is to protect public authorities and their employees in their everyday business – thus consideration of the effect of a request on them is entirely justified, adopting a purposive approach. Hence a single abusive and offensive request may well cause distress, and so be vexatious within section 14, applying the ordinary meaning of the word. A torrent of individually benign requests may well cause disruption, so one further such request may also be vexatious in the FOIA sense. However, for the reason noted in the previous paragraph, it may be more difficult to construe a request which merely causes irritation, without more, as vexatious under section 14. Thus an important aspect of the balancing exercise may involve consideration of whether or not there is an adequate or proper justification for the request. Similarly, the parallel test under the Environmental Information Regulations 2004 (SI 2004/3391) is (in part at least) whether the request is "manifestly unreasonable". For the reasons explained in my decision in Craven, for the most part I see no material difference between the terms "vexatious" and "manifestly unreasonable".
27. The common theme underpinning section 14(1), at least insofar as it applies on the basis of a past course of dealings between the public authority and a particular requester, has been identified by Judge Jacobs as being a lack of proportionality (in his refusal of permission to appeal in Wise v Information Commissioner GIA/1871/2011; see paragraph 17 above). This issue was also identified by the recent FTT in Lee v Information Commissioner and King's College Cambridge at [73] as a relevant consideration. I note that the FTT in Lee referred to the use of the term "vexatious" in legal parlance, citing some of the many uses of that adjective in legislation controlling access to proceedings or rights (see especially at [65]-[68]). For myself I would not go as far as that FTT did in terms of its methodology, not least as it seems to me the critical issue is the meaning to be attached to "vexatious" in the particular statutory context of FOIA, rather than in legislation generally. It does not seem right to me, in the context of a statute designed to ensure greater public access to official information and to increase accountability and transparency, to place too great an emphasis on the way in which Parliament may use the term in other legislation. That said, for the reasons above I agree with the overall conclusion that the FTT in Lee reached, namely that "vexatious" connotes "manifestly unjustified, inappropriate or improper use of a formal procedure" (at [69]).
28. Such misuse of the FOIA procedure may be evidenced in a number of different ways. It may be helpful to consider the question of whether a request is truly vexatious by considering four broad issues or themes – (1) the burden (on the public authority and its staff); (2) the motive (of the requester); (3) the value or serious purpose (of the request) and (4) any harassment or distress (of and to staff). However, these four considerations and the discussion that follows are not intended to be exhaustive, nor are they meant to create an alternative formulaic check-list. It is important to remember that Parliament has expressly declined to define the term "vexatious". Thus the observations that follow should not be taken as imposing any prescriptive and all encompassing definition upon an inherently flexible concept which can take many different forms.
History of Mrs Craven's request
Decision of the UT in Mrs Craven's case
(B) SUBMISSIONS ON THESE APPEALS
Preliminary point - Guidance issued by the IC and government departments
Submissions by the parties to Mr Dransfield
's appeal
Mr Dransfield
's submissions
IC's submissions on Mr Dransfield
's appeal
Devon CC's submissions on Mr Dransfield
's appeal
Submissions on Mrs Craven's appeal
Mrs Craven's submissions
IC's submissions
DECC's submissions
DISCUSSION OF BOTH APPEALS
(1) on MrDransfield
's appeal, whether, contrary to the decision of the UT, past requests are relevant only if they taint or infect the request which is said to be vexatious, and whether the FTT was in error;
(2) on Mrs Craven's appeal, there are four issues as follows:
i) The two-tests-one-meaning issue;
ii) whether there should have been any reference to regulation 12 EIR at all, because the DECC had not relied on it;
iii) whether section 14(2) limited the meaning of "vexatious" in section 14(1);
iv) whether the UT was correct in saying that the costs of compliance could be taken into account under the EIR.
Mr Dransfield
's appeal
Mrs Craven's appeal: (i) the two-tests-one-meaning issue
Mrs Craven's appeal: was it open to the IC to raise regulation 12?
Mrs Craven's appeal (iii): section 14(2) does not restrict the meaning of "vexatious"
Mrs Craven's appeal (iv): costs of compliance issue
Application of these conclusions to Mrs Craven's case
Overall conclusion
Lady Justice Gloster
Lady Justice Macur
(1) Freedom of information Act 2000
Section 1
General right of access to information held by public authorities
(1) Any person making a request for information to a public authority is entitled-
(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him.
(2) Subsection (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14…
(6) In this Act, the duty of a public authority to comply with subsection (1)(a) is referred to as "the duty to confirm or deny".
Section 10
Time for compliance with request.
(1) Subject to subsections (2) and (3), a public authority must comply with section 1(1) promptly and in any event not later than the twentieth working day following the date of receipt….
Section 12
Exemption where cost of compliance exceeds appropriate limit
(1) Section 1(1) does not oblige a public authority to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the appropriate limit.
(2) Subsection (1) does not exempt the public authority from its obligation to comply with paragraph (a) of section 1(1) unless the estimated cost of complying with that paragraph alone would exceed the appropriate limit.
Section 14
Vexatious or repeated requests
(1) Section 1(1) does not oblige a public authority to comply with a request for information if the request is vexatious.
(2) Where a public authority has previously complied with a request for information which was made by any person, it is not obliged to comply with a subsequent identical or substantially similar request from that person unless a reasonable interval has elapsed between compliance with the previous request and the making of the current request.
Section 17
Refusal of request
(1) A public authority which, in relation to any request for information, is to any extent relying on a claim that any provision of Part II relating to the duty to confirm or deny is relevant to the request or on a claim that information is exempt information must, within the time for complying with section 1(1), give the applicant a notice which—
(a) states that fact,
(b) specifies the exemption in question, and
(c) states (if that would not otherwise be apparent) why the exemption applies…
(5) A public authority which, in relation to any request for information, is relying on a claim that section 12 or 14 applies must, within the time for complying with section 1(1), give the applicant a notice stating that fact.
(6) Subsection (5) does not apply where—
(a) the public authority is relying on a claim that section 14 applies,…
Section 39
Environmental information
(1) Information is exempt information if the public authority holding it—
(a) is obliged by environmental information regulations to make the information available to the public in accordance with the regulations, or
(b) would be so obliged but for any exemption contained in the regulations.
(1A) In subsection (1) "environmental information regulations" means—
(a) regulations made under section 74, or
(b) regulations made under section 2(2) of the European Communities Act 1972 for the purpose of implementing any EU obligation relating to public access to, and the dissemination of, information on the environment.
(2) The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1).
(3) Subsection (1)(a) does not limit the generality of section 21(1).
(2) The Environmental Information Regulations 2004 (2004 No 3391)
PART 1 Introductory
Citation and commencement
1. These Regulations may be cited as the Environmental Information Regulations 2004 and shall come into force on 1st January 2005.
Interpretation
2. (1) In these Regulations—
"the Act" means the Freedom of Information Act 2000(3); …
"the Commissioner" means the Information Commissioner;
"the Directive" means Council Directive 2003/4/EC(4) on public access to environmental information and repealing Council Directive 90/313/EEC;
"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—
(a) 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;
(b) 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);
(c) 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;
(d) reports on the implementation of environmental legislation;
(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and
(f) 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);…
Duty to make available environmental information on request
5. (1) Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6) and the remaining provisions of this Part and Part 3 of these Regulations, a public authority that holds environmental information shall make it available on request.
(2) Information shall be made available under paragraph (1) as soon as possible and later than 20 working days after the date of receipt of the request."
Extension of time
7. (1) Where a request is made under regulation 5, the public authority may extend the period of 20 working days referred to in the provisions in paragraph (2) to 40 working days if it reasonably believes that the complexity and volume of the information requested means that it is impracticable either to comply with the request within the earlier period or to make a decision to refuse to do so…
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—
(a) an exception to disclosure applies under paragraphs (4) or (5); and
(b) in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.
(2) A public authority shall apply a presumption in favour of disclosure.
(3) To the extent that the information requested includes personal data of which the applicant is not the data subject, the personal data shall not be disclosed otherwise than in accordance with regulation 13.
(4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that—
(a) it does not hold that information when an applicant's request is received;
(b) the request for information is manifestly unreasonable;…
Refusal to disclose information
14(1) If a request for environmental information is refused by a public authority under regulations 12(1) or 13(1), the refusal shall be made in writing and comply with the following provisions of this regulation.
(2) The refusal shall be made as soon as possible and no later than 20 working days after the date of receipt of the request.
(3) The refusal shall specify the reasons not to disclose the information requested, including—
(a) any exception relied on under regulations 12(4), 12(5) or 13; and
(b) the matters the public authority considered in reaching its decision with respect to the public interest under regulation 12(1)(b) or, where these apply, regulations 13(2)(a)(ii) or 13(3)…
(3) Directive 2003/4/EC of 28 January 2003 on public access to environmental information
Whereas:
(1) Increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment..
Article 4
Exceptions
(1) Member States may provide for a request for environmental information to be refused if:
(a) the information requested is not held by or for the public authority to which the request is addressed. In such a case, where that public authority is aware that the information is held by or for another public authority, it shall, as soon as possible, transfer the request to that other authority and inform the applicant accordingly or inform the applicant of the public authority to which it believes it is possible to apply for the information requested;
(b) the request is manifestly unreasonable;…