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Tribunal: ICO was wrong to bin angry man's FOI request

Council tenant's request wasn't 'vexatious', so there

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The UK's freedom of information (FOI) law watchdog was wrong to rule that an FOI request was vexatious, the Information Rights Tribunal – formerly the Information Tribunal – has ruled.

The request had a "clear purpose and value" and was not "manifestly unreasonable", the Tribunal said.

The Information Commissioner's Office (ICO), which is responsible for ensuring public bodies comply with FOI laws, had previously ruled that Nottingham City Homes (NCH) was correct to deem an FOI request made by council house tenant M Gardner as "vexatious", according to the ruling. Nottingham City Council used NCH as a "corporate vehicle" to manage Gardner's property, it said.

The Freedom of Information Act (FOIA) and the Freedom of Information (Scotland) Act came into full force on 1 January 2005, giving individuals the right for the first time to see information held by government departments and public bodies.

Under the FOI laws anyone of any nationality living anywhere in the world can make a written request for information and expect a response within 20 working days. The public authority will be obliged to meet that request unless exemptions apply or unless meeting it will be too costly or difficult. Public bodies can decide not to provide information requested if they deem the request to be vexatious.

In 2009 Gardner made an FOI request to NCH asking it to reveal how much it and the Council had spent on neighbouring council house properties, along with details of any maintenance works, since 1998, according to the Tribunal's ruling.

NCH rejected the request, deeming that the request was looking for personal information, which public bodies are exempt from revealing under FOI laws. NCH also deemed the request as vexatious as it was "a repeated request on issues previously raised," the ruling said. Gardner had made a previous request for the information in 2002, the ruling said.

Gardner complained to the ICO that NCH should be forced to give up the information but the watchdog disagreed. The Tribunal said that the ICO had considered if the request was vexatious according to five criteria, which the Tribunal said it "broadly accepted".

The ICO had assessed: whether the request was obsessive or manifestly unreasonable; whether it harassed NCH or distressed its staff; whether compliance would impose a significant burden of expense and distraction on the NCH; whether the request was designed to cause disruption or annoyance; and if it lacked any serious purpose of value, the Tribunal said.

The ICO was wrong to rule that the request was "obsessive and unreasonable" as it was repeating an earlier request for information, the Tribunal said.

"To repeat the request once the FOIA is in force is not unreasonable, the 'revisiting of issues previously raised' on analysis is dealing with the range of complex matters which have arisen over the years some of which have not been resolved and seeking verification of information is not manifestly unreasonable," the Tribunal said in its ruling (7-page/44KB PDF).

The Tribunal also said that the ICO was wrong to rule that the length of time and nature of communications was harassing or distressing to NCH and its staff.

The ICO had "erred by conflating the real, substantial and partially unresolved issues concerning [Gardner's] tenancy and neighbouring properties with the request", the Tribunal said.

Gardner had been involved in "problems associated with the ... occupancy of his flat", including over the eviction of another resident, and being charged for gas supply he did not receive, the ruling said. An agreement regarding the behaviour of workmen coming to Gardner's flat, which was agreed under the terms of UK discrimination laws, has also "not been implemented", the Tribunal said. It said there was not a significant burden on NCH to comply with Gardner's request.

The ICO had correctly judged that Gardner's request was not designed to cause disruption or annoyance, the Tribunal said.

The Tribunal also said it was surprised that the ICO had ruled Gardner's request for information "had no serious value or purpose in its context". Gardner's request was purposeful because he was trying to compare the amount of money spent on his property with resources spent on neighbours', the Tribunal said.

"This is a transparent attempt to obtain evidence that other properties have had more resources spent on them than [Gardner's]; with a clear view to using that information to found a claim under discrimination or housing legislation," the Tribunal ruling said.

"It is no part of this Tribunal's role to determine the substantive merits of such claims; however they are at least theoretically conceivable and in the context of the application, clearly apparent. The application therefore has a clear purpose and value," it said.

The Tribunal said that NCH had "focused too much on the history of its relations" with Gardner and not considered his FOI request "on its merits". It said the ICO had "erred" in deeming Gardner's request as being vexatious.

Copyright © 2011, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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