Paragraph numbers in this blog post relate to the Court of Session’s decision in Beggs v Scottish Information Commissioner  CSIH 80; unless the context requires, or it is expressly stated, otherwise.
If you’re regularly involved in the making of or responding to freedom of information requests then you are likely to be familiar with the decision of the English and Welsh Court of Appeal in Dransfield and Another v The Information Commissioner and another which deals with the meaning and application of “vexatious” within section 14 of the Freedom of Information Act 2000 (“FOIA”). In keeping with many of the provisions of FOIA, there has been considerable litigation on section 14 within the First-Tier Tribunal; however, the decision in Dransfield is the leading authority on the approach that public authorities, the UK Information Commissioner and the First-Tier and Upper Tribunals should take when applying or considering the exemption in section 14(1) of FOIA.
As with many aspects of the Freedom of Information (Scotland) Act 2002, the equivalent provisions within FOISA (also section 14) have escaped any judicial consideration; that is, until today when the First Division, Inner House of the Court of Session (Lord President Carloway and Lords Brodie and Drummond Young) advised its opinion in an appeal under section 56 of FOISA against a decision of the Scottish Information Commissioner which upheld the decision of the Scottish Prison Service that a request for information made to it was vexatious: Beggs v Scottish Information Commissioner  CSIH 80.
As with most cases involving vexatious requests, there is a history to the matter; this is briefly set out in paragraphs 5-15 of the Court’s Opinion. I am therefore not going to set it out here. There were two grounds of appeal advanced on behalf of the Appellant before the Court and these are set out, in full, by the Court in paragraph 4 of its Opinion. The grounds can be summarised as follows: (1) that the test set out by Arden LJ (as she then was) in Dransfield should apply and that it had been incorrectly applied by the Scottish Information Commissioner (“SIC”); and (2) that the SIC’s decision was irrational as it failed to take into account a number of factors. The court ultimately rejected both grounds of appeal and refused the Appeal.
The Court makes some “preliminary comment” about the English and Welsh Court of Appeal’s decision in Dransfield. It notes that the decision is “an English case concerning English legislation” (para 26). This is not a wholly accurate statement by the Court: Dransfield concerns section 14 of FOIA, which cannot properly be said to be English legislation. FOIA covers UK-wide public bodies (such as UK Government departments, the BBC, UCAS, the British Transport Police and other); it can be used by people living in Scotland. There is also no separate Norther Irish FOI law and FOIA applies to bodies such as departments of the Northern Irish Government and the Police Service of Northern Ireland. Furthermore, it is possible for appeals against the Upper Tribunal to be taken to the Court of Session and the UK Commissioner can, for example, under section 54, make certifications to the Court of Session.
It appears that what the Court meant by “English legislation” is that the decision in Dransfield was not binding upon the SIC as the SIC is concerned with the enforcement of FOISA – an Act of the Scottish Parliament – rather than FOIA – an Act of the UK Parliament. I may, of course, be entirely wrong and the Court of Session has fundamentally misunderstood FOIA and the distinction between FOIA and FOISA. However, this is not really a matter upon which anything of substance in Beggs can be said to turn. It appears that the Court has essentially adopted the reasoning of Arden LJ and supplemented it with some of its own.
Also by way of preliminary comment the Court notes that Arden LJ expressly declined to offer a definition of or test for “vexatious” or “vexatiousness” (para 26) and so it was incorrect to argue that Dransfield set out a “test” for vexatious requests. The court went on (also at para 26) to state that “[i]t would be remarkable if the word “vexatious” when found in section 14(1) of the English Act of 2000 meant something different from the same word when found in section 14(1) of the Scottish Act of 2002; the terms of the two subsections are essentially identical.”
However, the Court of Session found that there was much in the judgment of Arden LJ that they would agree with and quote paragraph 68 of the judgment of Arden LJ with approval. The Court of Session, perhaps importantly, appears to have approved of the view that Arden LJ took that the rights in FOIA were constitutional in nature (para 28). The court also held that when assessing whether a request is vexatious or not, it must be viewed objectively. In the decision under challenge, the SIC had concluded that when viewed objectively the information sought was of no value to the Appellant. The First Division held that had the SIC followed Dransfield (which she was not obliged to do so) then she would have correctly reached the same conclusion: that Mr Beggs’ request was vexatious (para 30).
In terms of the irrationality ground of appeal, this was dealt with more swiftly by the Court. Counsel for the Appellant had characterised the three matters which the Appellant argued had been overlooked by the Court, were material.
The first matter was the Appellant’s express disavowal of any direct and personal attack. The Appellant had expressly disavowed in his request that there was any such attack. However, the Solicitor Advocate for the SIC argued that the contents of a letter sent to one of the SIC’s officers revealed the Appellant’s purpose; the Appellant’s purpose was “not to obtain information as such” (para 33) rather it was with a view to pursuing complaints about their conduct.” (also at para 33).
The court held that “the presence of a malicious motive may point to a request being vexatious the absence of a malicious motive does not point to a request not being vexatious” (para 33). In essence, while the Court appears to have been sceptical of the Appellant’s express disavowal of personal attack it seems that even if it had not been sceptical, the disavowal may not have assisted the Appellant anyway. The Court again expressed the objective nature of assessing whether a request is vexatious and agreed with the SIC that a request may be harassing even if that is not what is intended by the requester.
The second consideration referred to the past conduct of the authority; these requests appear to have been the result of the Scottish Prison Service putting forward inaccurate information in earlier proceedings before the Court of Session. The Court approved of the view of Arden LJ in respect of vengeful motives – such a motive might itself be an indicator that a request is vexatious. The court’s position here is fairly broad, but it does not appear to close off legitimate use of FOISA to uncover evidence of wrongdoing within a Scottish public authority. However, it is fairly clear that if a requester is using
The third consideration related to the importance of the information requested; the court concluded that the information was objectively of no value and this was therefore not a material consideration.
This is the first time that the vexatious requests provision in FOISA has been considered by the Scottish courts and will now be the leading case in applying section 14(1) of FOISA. The decision essentially approves of the approach set out by the English and Welsh Court of Appeal in Dransfield. It is important to remember that a request must be considered objectively. There is no express test for vexatious requests either under FOIA or FOISA, but it will be important for Scottish public authorities to keep in mind the constitutional nature of the rights in FOISA. With this in mind, the threshold for applying the provision in section 14(1) of FOISA is a high one.
The Court of Session considers that, when Arden LJ used the phrase “no reasonable foundation for thinking that the information sought would be of value”, it appears that Arden LJ was trying to encapsulate an idea of “gross disproportion as between much trouble inevitably caused and little benefit possibly gained.” How much traction this comment of the Court of Session will have in terms of the application of section 14 of FOIA (given that the Court of Session’s judgments in FOISA cases are of only persuasive authority to the Tribunals and English and Welsh Courts) remains to be seen. Of course, should Beggs seek permission (and be granted permission) to appeal to the Supreme Court we may get a definitive view from(the now) Lady Arden on whether the Court of Session has correctly interpreted what she meant when sitting in the English and Welsh Court of Appeal.
For the time being, whether or not the Court of Session was right in what it said, this is now (subject to any appeal) the law as it applies in Scotland vis-à-vis FOISA. When considering whether a requester has a reasonable foundation for thinking that the information sought would be of value, it is necessary to look (objectively) at what value there is in the information (a mere assertion by the Applicant that it is of value will not itself be sufficient) and balance that against the inevitable burden that answering the request will place on the authority: they are inversely proportional to one another.
From the perspective of requesters, it is likely to be of little assistance to include express statements in requests that the request is not a personal attack on the authority or a member of its staff and even if you have no intent to cause harassment your request might well have that effect. Your request will be considered objectively in light of its facts and circumstances (and comments made in later correspondence may well be seen as tending to show the opposite).
The decision in Beggs is not likely to have much, if any, impact upon the way in which the vexatious requests provisions in FOISA operate in practice. The Court has essentially approved of the approach to the identical provisions under FOIA. In the absence of any previous authority from the Scottish courts in respect of section 14, the SIC and Scottish public authorities have historically found Dransfield to be persuasive and used it as a basis for understanding what section 14 means.
In short, to decide whether a request is vexatious it is necessary to consider the request objectively on its own facts and circumstances. There is no formula or checklist that can be followed which will give you a definitive answer.