Chapter 03: The limits of your duty to answer requests
There are two kinds of limitation on the rights of access to information:
procedural limitations set out in Part 1 of the Act; and
substantive exemptions which are set out in Part 2 of the Act.
This guidance concentrates on the first of these. But in handling requests
of information, it is important to be aware of how the substantive exemptions
work. These are addressed below.
Substantive
The Act contains 23 exemptions to the right of access. The exemptions
listed in Part 2 of the Act set the boundaries to the rights of access:
if information is exempt then individuals do not have a right of access
to it under the FOI Act. These boundaries are extremely important, and
in some cases applying an exemption to an information request may involve
quite complex exercises of judgment.
An indication of the sort of information the exemptions cover can be
found in the Exemptions Summaries. This provides an indicator of what
you should be aware of when considering whether an exemption applies to
the information requested. If you think that an exemption may apply to
the information, you should consider whether you need to make your FOI
specialist aware.
DCA has produced an easy-to-use 'Introduction to Exemptions' guide. This
handbook provides a basic introduction to exemptions, the principles behind
them and the factors that should be taken into consideration in their
application.
More detailed guidance on FOI Exemptions can be found in the full Exemptions
Guidance, that provides detailed advice on the interpretation of each
of the exemptions. It considers each exemption in turn looking at the
meaning of the exemption and the nature of the decision making process
relevant for each.
Protective Markings and descriptors (eg. Restricted, Confidential) dictate
how information is stored, copied and communicated within your department.
The fact that a document is protectively marked does not necessarily mean
that it is exempt from the right of access under the FOI Act. However,
it may provide an indication that an exemption may apply to some or all
of its contents. In order to ascertain whether protectively marked information
falls within an exemption, consideration must be given to the sensitivity
of the information at the time of a request for disclosure and whether
any prejudice is likely to arise from its release at that time.
Procedural and cost limitations
Freedom of Information is not intended to be a bureaucratic system, and
there are a limited number of procedural reasons why you need not comply
with a request for information. Some of these have been considered already,
for example:
the information is not held by the public authority that has received
the request
And others are considered in the chapter that looks at what constitutes
a request, for example:
the request is not in writing
the request does not sufficiently identify the information sought.
There are two additional procedural limitations of which you need to
be aware. The most important relates to the cost of complying with a request
(see chapter on costs and times). The other relates to the question of
whether the request is repetitious or vexatious.
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
You should always contact your departmental FOI expert if you consider that a request might be vexatious.
