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Sittampalam v Information Commissioner & Home Office [2012] UKFTT EA/2012/0150

DATE: 20 Dec 2012

This was an appeal before the First-tier Tribunal General Regulatory Chamber (Information Rights) concerning the circumstances in which a repeated request for information under the Freedom of Information Act 2000 can be rejected as vexatious under s.14 of the Act.

The issues included the relevance and application of the Information Commissioner’s non-statutory criteria for considering whether repeat requests are vexatious, namely:

“(i) Whether compliance would create a significant burden in terms of expense and distraction;

(ii) Whether the request is designed to cause disruption or annoyance;

(iii)Whether the request has the effect of harassing the public authority or its staff;

(iv) Whether the request can fairly be characterised as obsessive or manifestly unreasonable;

(v) Whether the request had any serious purpose or value.”

Dismissing the appeal, the Tribunal held:

“26. The Tribunal, in considering the application of the Commissioner’s five criteria, agrees that the five questions set out there were likely to overlap and that the weight which could be placed on each would depend on the circumstances.

27. The criteria could guide an assessment of the overall balance of the case. In terms of context and history, it was quite permissible to take account of the wider context and history of any request when considering the questions in the criteria.

28. A request, of itself, might not be vexatious in isolation but when it was considered in context – for instance, when it was the latest in a long series of overlapping requests or correspondence – it might well form part of a wider pattern of behaviour that made it vexatious.

29. The Tribunal also found the observations of Upper Tribunal Judge Jacobs in Wise v IC [GIA/1871/2011] helpful in determining this appeal. At Paragraph 10 Judge Jacob stated 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.”

30. It is clear that the Home Office – in the period from September 2009 to the time of the internal review in October 2010 – had spent over 100 hours dealing with various requests from the Appellant. The Tribunal considers that the meta-request behind this appeal crosses the line in terms of proportionality and becomes vexatious.

31. On that basis, the Tribunal is satisfied – unanimously – that both the Commissioner and the Home Office applied s.14 FOIA correctly. This is not a gross or flagrant example of s.14 behaviour but that section was correctly applied given all the background facts and the context being considered by the Home Office and the Commissioner.”

Charles Banner appeared for the Home Office (instructed by the Treasury Solicitor), who successfully resisted the appeal.