Could Wikeley make FOI changes less likely?

The following post by saveFOI co-founder Paul Gibbons, a.k.a “FOIMan”, first appeared on his blog http://www.foiman.com/ and is reproduced here with his permission and our thanks.

Recent rulings by the Information Tribunal relating to vexatious requests could be a better answer to Government concerns over FOI than changes being mooted by the Ministry of Justice. At a briefing earlier today, Maurice Frankel of the Campaign for Freedom of Information argued that the Government’s proposals would be highly damaging to FOI and what’s more, were no longer necessary.

Maurice highlighted the Government’s intentions set out in the Ministry of Justice’s response to the post-legislative scrutiny carried out by the Justice Select Committee, and recently clarified by one Minister at a poorly attended Parliamentary debate. The key changes being looked at by the Ministry of Justice appear to be:

  • reducing the “acceptable limit” set out in fees regulations above which FOI requests can be refused under section 12 of the Act;
  • allowing public authorities to include consideration time in the assessment of this limit;
  • allowing public authorities to aggregate the costs of complying with unrelated requests from the same person or group received within a 3 month period (currently they can only do this if someone makes a series of requests for similar information);
  • charging for appeals to the Information Tribunal (First Tier and Upper).

Maurice described these proposals as the most damaging yet. Some of them are, however, very familiar. The inclusion of consideration time and aggregation proposals was consulted on in 2006/7 under Tony Blair, and dropped at the instigation of his successor. Could it be that civil servants have merely dusted off the old proposals to save themselves some time?

In any case, it may be that these proposals are now redundant. The Government’s main aim in introducing these changes appears to be to address situations in which requests are expensive to answer, but can’t, for technical reasons, be refused under the “acceptable limit” rules. But here’s where recent decisions of the Tribunal – at both levels – come in.

Last year I wrote about an important decision of the First Tier Tribunal which suggested that public authorities could refuse FOI requests under section 14 of the Act – the section dealing with vexatious requests – in a much wider set of circumstances than the Information Commissioner’s guidance had led us to believe. In particular, the Tribunal ruling offered the tantalising (for FOI Officers at least) possibility that requests could be refused under section 14 if they imposed a significant burden on the authority, even if there was no other reason to suggest the requests were vexatious.

Since then, a number of First Tier Tribunals have taken a similar line. However, strictly, decisions of the Information Commissioner or of the First Tier Tribunal cannot set precedents in the common law of England and Wales. This means that in theory at least, there is no legal reason why their decisions have to be consistent. But rulings of the Upper Tribunal and higher courts do set precedent. And we now have such a ruling in respect of vexatious requests.

The new ruling, from Judge Wikeley, appears to support the more common sense approach that the other Tribunals have moved towards. It doesn’t entirely dismiss the Information Commissioner’s established checklist approach, describing it as a useful guide, but favours a more “holistic” consideration of whether a request is vexatious or not.

“The presence, or absence, of a particular feature is not determinative. So one particular factor alone, present to a marked degree, may make a request vexatious even if no other factors are present. The question ultimately is this – is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA?” [2012] UKUT 440 AAC, para. 43

(For a more in depth analysis of Judge Wikeley’s decision, I recommend Robin Hopkin’s post on the Panopticon Blog.)

The problem with the Government’s proposals is that they threaten to reduce the effectiveness of FOI for everyone. The inclusion of consideration time is likely to significantly reduce the amount of information that can be asked for, no matter what the public interest in disclosure. Similarly, if a journalist has to make a series of follow-up requests to get to the bottom of a legitimate story, he or she will soon use up the time allowed if the new aggregation rule is brought in. Indeed, they may prevent any of their colleagues being able to ask questions of the same authority within three months.

But the Tribunals’ approach offers a more nuanced answer to the problem of the excessive burden imposed by some FOI requests. It allows public authorities to refuse requests that are expensive to answer or are manifestly unreasonable, whilst encouraging them to consider carefully the wider context of the requests. That approach seems much more in line with the value that the Ministry of Justice claims to recognise in FOI, whilst meeting their stated concerns.

Let’s hope that someone at the Ministry of Justice reads about these decisions before it’s too late.

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6 thoughts on “Could Wikeley make FOI changes less likely?

  1. ALAN M DRANSFIELD says:

    I do not believe any person applying a right and proper mind could have reached the same decision as reached by Judge Wikeley in a recent Test Case,ref GIA/3037 /2011. Alan M Dransfield V ICO & Devon County Council.
    I am now taking this case to the Court of Appeal, as I believe Judge Wikeley decision is unsafe.
    Judge Wikeley agreed with the ICO that I had a 5 year context and history of vexatious requests . Judge Wikeley was obviously concerned about the veracity of the ICO/DCC claims because he issued a Court Order to them to provide the FULL HISTORY.of my FOIA requests.
    The DCC and the ICO gave Judge Wikeley their middle finger,hence, to date NOBODY has seen these SO CALLED Ghost Documents.
    The DCC admitted they had destroyed the GHOST DOCUMENTS last year.
    The case continues,,as they say in legal jargon.

    This was a Consolidated Test Case, the first of its kind in the Uk and Judge Wikeley saw fit to sit alone on this case.
    It also transpires the Officials Records have gone missing.
    I could be forgiven in thinking they are hiding something.??!!

  2. ALAN M DRANSFIELD says:

    No only did Judge Wikeley rely on Ghost Documents is now transpires the subject matter of my FOIA was also a ghost. I refer to the Exeter Chief Rugby Ground Pedestrian Bridge which TRANSPIRES is NOT owned by the DCC.
    Therefore, the UT decision GIA30337/2011 Alan M Dransfield V ICI &DCC should be declared Null and Void because the correct answer the DCC should have given was a refusal under DO NOT HOLD.
    No doubt,Judge Wikeley or the Upper Tribunal President will not declare the GIA decision as FLAWED and I will have to battle tru the Court of Appeal.
    Never mind, I am begining to enjoy this.

  3. ALAN M DRANSFIELD says:

    It transpires that the Devon County County do not own the Exeter Chiefs Rugby Ground Bridge ,hence ,the GIA/3037/2011 decision from the UT is further flawed as it should NOT have been before the Courts in the first place.

    The only FOIA decision which could and should have been made on this case, SOUGHTAFTER DATA NOT HELD BY THE DEVON COUNTY COUNCIL/FOIA REQUEST REFUSED.

    The GIA Upper Tribunal decision was based on GHOST documents for a GHOST RIDGE.

    This has got great potential for a CARRY ON THE JUDGE FILM.
    The $64K question is WHY have the DCC and ICO spent thousands of pounds and 4 years pursuing a Legal Battle on a Bridge which is NOT owned by the DCC.

    Could it be with the fact this GIA/3037/2011 UT decision from Judge Wikeley is a sledgehammer to crack any NUTS wishing to dispute VEXATIOUS decsions??

  4. ALAN M DRANSFIELD says:

    Unfortunately,Judge Wikeley’s decison ref GIA/3037/2011 re Dransfield V ICO is allowing unfettered access to VEXATIOUS decisions by rogue Public Authorities.

    No wonder the ICO threw the Kitchen Sink at this case because they knew if I won my case VEXATIOUS DECISIONS would have become a rare as rocking horse pooh..

    However, it transpires the Devon CC did NOT own the FOIA subject matter,hence, 4 years and HUGE chunk of Taxpayers money as been wasted because the GIA case above is/was NOT under the Jurisdiction of the FOIA 2000.
    Egg on faces or what.

  5. ALAN M DRANSFIELD says:

    I am currently awaiting a Court of Appeal hearing date for GIA/3037/2011 and the UT have recently overturned a Contempt of Court appeal refusal by the FTT
    Happy days

  6. ALAN M DRANSFIELD says:

    It it only me that reads your comments on this site??

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