I've pasted the full verdict on Kay's complaint below, but as the PDF kind of chops up the text, I've only corrected the bits referring to this site, and put it at the top. Maybe I'll clean up the rest at some point, or someone else can...
Reference:
FS50558878
1
F
reedom of
Information Act 2000 (FOIA
)
Decision n
otice
Date
:
4
June 2015
Public Authority:
Brimscombe and Thrupp Parish Council
Address:
11 Broadstone Close
Barnwood
Gloucester
GL4 3TX
Complainant:
Ms
K V Powell
Address:
kayvpowell@h
otmail.co.uk
Decision
(including any steps ordered)
1.
The complainant has requested
information relating to allotments within
Brim
scombe and Thrupp Parish
.
The Council refused to provide the
complainant with the requested information on the grounds that her
request is vexatious.
2.
The Commissioner
has considered the re
presentations made to him by
Brimscombe and Thrupp Parish
Council
. He
has decided
that
the
Council
has
incorrectly applied section 14(1) of the FOIA to the complainant’s
request.
3.
T
he Commissioner
requires the
Council
to take the following steps to
ensure compliance with the
legislation.
The Council should disclose to the complainant any recorded
information it holds which is relevant to her request or it should
issue a new refusal notice which is
compliant with the provisions of
section 17 of the FOIA.
4.
The public authority must take these steps within 35 calendar days of
the date of this
d
ecision
n
otice. Failure to comply may result in the
Commissioner making written certification
of this fact to t
he High Court
pursuant to section 54 of the Act and may be dealt with as a contempt
of court.
Reference:
FS50558878
2
Request and response
5.
On 31 August 2014
, the complainant wrote to
Brimsc
ombe and Thrupp
Parish Council (
“the Council”) to ask for
information in the following
term
s:
1.
“How much land does the parish have that is used for
allotments?
2.
How much, if any, is classified as statutory allotments?
3.
How many individual allotments are there?
4.
How many people are currently renting allotments?
5.
How many allotments are currently unlet
?
6.
How many people are on the waiting list?
7.
What is the annual rental charge per square metre or per
allotment (in which case please state allotment size)?
8.
Do all plot holders have easy access to water?
9.
Please forward a copy of the allotment rules.
10.
Please f
orward a copy of any annual allotments report
–
there
should be two of these by now according to item 11 of the
Parish Council minutes from 8 January 2013.”
6.
The Council responded to the complainant’s request on 20 October
2014. The Council informed the co
mplainant that her request had been
considered as being vexatious. The Council’s decision appeared to be
founded on its belief that the complainant had misrepresented herself as
being a representative of the National Society of Allotment and Leisure
Garden
ers Ltd (“NSALG”) and that she was conducting a review of
allotment provision on its behalf. Consequently the Council advised the
complainant to refer the matter to (a named person) of the NSALG, and
stated that; if (a named person) was to confirm to the C
ouncil that this
is a legitimate and non
-
vexatious request, the information will then be
released.
7.
On 17 November, the complainant wrote to the Council again. In her
email the complainant advised the Council that her membership of
NSALG was irrelevant and
that she operates under no
-
one’s jurisdiction.
The complainant informed the Council that she has the right to make
her information request and asserted that the information should be
freely available to the public.
The complainant
stated that she was
appe
aling the Councils decision of 20
October.
8.
On 8 December,
the complainant
was informed that her request had
been considered by the Council at its meeting of 2 December, and that it
was unanimously agreed to refuse her appeal on the grounds that her
request
is vexatious.
Reference:
FS50558878
3
Scope of the case
9.
T
he complainant contacted the Commissioner
on 8 December 2014
to
complain about the way her
request for information had been handled
.
10.
The Commissioner has investigated whether the Council is entitled to
rely on section 14(
1) of the FOIA as its grounds for refusing to comply
with the complainant’s request. This notice sets out the Commissioner’s
decision.
Reasons for decision
11.
The Coun
cil has confirmed that it defends its position to refuse to
release to the complainant the i
nformation she asked for in her request
of 31 August 2014.
Section 14(1)
–
Vexatious requests
12.
Section 14(1) of FOIA states that section 1(1) does not oblige a public
authority to comply with a request for information if the request is
vexatious. There is
no public interest test.
13.
The term ‘vexatious’ is not defined in the legislation.
In Information
Commissioner v Devon County Council & Dransfield
1
the Upper Tribunal
took the view that the ordinary dictionary definition of the word
vexatious is only of lim
ited use, because the question of whether a
request is vexatious ultimately depends upon the circumstances
surrounding that request. The Tribunal concluded that ‘vexatious’ could
be defined as the “...manifestly unjustified, inappropriate or improper
use of
a formal procedure” (paragraph 27). The decision clearly
establishes that the concepts of ‘proportionality’ and ‘justification’ are
central to any consideration of whether a request is vexatious.
14.
In the Dransfield case, the Upper Tribunal also found it ins
tructive to
assess the question of whether a request is truly vexatious by
considering four broad issues: (1) the burden imposed by the request
(on the public and its staff); (2) the motive of the requester; (3) the
value or serious purpose of the request;
and (4) and harassment or
distress of and to staff.
1
UKUT 440 (AAC) (28 January 2013)
Reference:
FS50558878
4
15.
The Upper Tribunal did, however, also caution that these considerations
were not meant to be exhaustive. Rather, it stressed the “importance of
adopting a holistic and broad approach to the determinati
on of whether
a request is vexatious or not, emphasising the attributes of manifest
unreasonableness, irresponsibility and, especially where there is a
previous course of dealings, the lack of proportionality that typically
characterise
vexatious requests
” (paragraph 45).
16.
The Commissioner has therefore considered whether the request is likely
to
cause a disproportionate or unjustified level of disruption, irritation or
distress in relation to the serious purpose and value of the request. He
considers ther
e is in effect a balancing exercise to be undertaken,
weighing the evidence of the request’s impact on the authority against
its purpose and value.
17.
The Commissioner has identified a number of “indicators” which may be
useful in identifying vexatious reque
sts. These are set out in his
published guidance on vexatious requests
2
. The fact that a request
contains one or more of these indicators will not necessarily mean that it
must be vexatious. All the circumstances of a case will need to be
considered in rea
ching a judgement as to whether a request is
vexatious.
The Co
uncil’s application of section 14(1)
18.
There are two
factors underpinning
the Council’s
application of
section
14(1) of
the FOIA
:
The first relates to the complainant’s position within
the Nationa
l Society of Allotment
and Leisure Gardeners Limited
(“
NSALG
”)
–
known as
the National Allotment Society, and the second
relates to the complainant’s use of a website called “TrollhunterX”
The complainant’s position within NASLG
19.
In most cases, where a publ
ic authority receives a reques
t for recorded
information
under the FOIA
, the identity of the applicant and the
pur
pose or motive lying behind the
request should not be considered by
the public authority.
However
where a public authority considers the
possi
ble application if section 14(1), both of these factors may be
considered
. Such
consideration may be relevant
and necessary in order
to
gauge the overall affect
the request m
ight
have on the
public
authority
.
2
www.ico.org.uk/~/media/documents/library/Freedom_of_Information/Detailed_specialist_guides/dealing
-
with
-
vexatious
-
requests.ashx
Reference:
FS50558878
5
20.
In this case
, in making her request for informa
tion,
the
complainant
informed the Council that she is, ‘the new Regional Rep for the Southern
Region of the NSALG’ and that she was
‘looking at allotment provision in
Gloucestershire’.
21.
On receipt of the complainant’s request, the Council contacted NSALG
a
nd spoke to its Legal and Operations Manager about this matter. The
Manager confirmed that NSALG had not sanctioned any review of
allotment provision.
In
c
onsequen
ce of this,
the Council
informed the
complainant that
, “...as you are the Representative for th
e NSALG and
are allegedly conducting a review of allotment provision on their behalf
which has not been sanctioned by the Association the Council considers
your request at this current time as being vexatious”.
22.
The Council informed the complainant that sh
ould the NSALG Manager
confirm that the request is legitimate and non
-
vexatious the information
would be released.
23.
The position of the Council, at
this point
, was based solely on the
compla
inant’s position within NSALG
and, by its own
admission;
the
inform
ation
sought by the complainant
would be released
if NSALG was
to provide it with appropriate authorisation
.
24.
The Council provided the Commissioner with an email it had received
from NSALG. The email appears to have been sent in response to a
complaint th
e Council made about the
complainant’s
conduct in her
capacity
as
a Regional Representative. The email makes clear that
NSALG had asked the complainant to ‘withdraw from this issue [her
request and complaint] totally’.
25.
Notwithstanding NSALG’s email, t
he co
mplainant’s response to the
Council makes clear that she
rejects the Council’s
characterisation
of her
request as being vexatious.
The complainant
asserted that she does not
operate under any ones jurisdiction and she denied the Council’s claim
that she wa
s carrying out an NSALG survey
.
26.
The Commissioner has considered the wording used by the complainant
in making her request. He can see how the Council has inferred that the
complainant is seeking the requested information on behalf of NSALG.
However, an obj
ective reading of the request does not provide for this
inference to the made. The Commissioner reads the request as being
made by the complainant for her own purpose, albeit related to her
position within NSALG.
The complainant’s comments posted on the Tr
ollhunterX website
27.
The Council has drawn the Commissioner’s attention to comments
posted by the complainant on the TrollhunterX website.
The Council
Reference:
FS50558878
6
provided two links to information on this website and print
-
out
s
of
information posted by the complainant.
28.
The Council
asserts that
the complainant’s posts
were placed
in
to
the
public domain
and that they encourage others to send in freedom of
information requests to the Council. The posts also refer to the Council
and to one of its employees in a very disparag
ing manner.
29.
The Commissioner has reviewed the information provided by the
Council. He finds that the complainant’s posts
do
relate,
at least
in part,
to her position within NSALG and
to
her request for information made to
the Council.
30.
The complainant’s po
sts
relating to her position in NSALG
began on 2
July 2014
,
and
her
posts relating to her request for information appear
from
20 November 2014 onwards
.
All of the posts con
stitute
a two
-
person exchange of views
between the complainant and the site’s
admini
strator
and
the underlying issue
to
which the posts relate is the
status of the Council’s allotment site
–
whether it is statutory
allotments.
31.
The compla
inant makes clear reference to
trying to get information out
of the Council and she does encourage peo
ple to make freedom of
information requests for themselves
about the allotments
.
The
complainant
also
refers to the Parish Clerk by name.
The Commissioner’s conclusions
32.
The Commissioner is bound to follow his own guidance: On its face, the
complainant’s re
quest is straightforward and would not present the
Council with a significant burden
to provide
the complainant with
recorded information relevant to her request
. The Council appears
to
acknowledge
this when it confirmed
that
the information would be
provi
ded
should NSALG sanction the request
.
The Commissioner would
go further and state that the information sought by the complainant is of
sufficient interest to the public to merit its potential disclosure.
33.
Here, it was the complainant’s disclosure of her p
osition within NSALG
that prompted the Council’s initial view that the request is vexatious.
The Commissioner must reject this: It is now well established that the
identity of a requester and the purpose of his/her request is not
generally relevant when co
nsidering whether to comply with that
request
unless the holistic circumstances of the case are taken into
account
.
In this case there are no obvious circumstances which would
suggest this approach is warranted.
34.
Holding an office within an organisation do
es not impart
with it
enhanced rights to access information held by public authorities;
Reference:
FS50558878
7
likewise not holding
an office does not diminish a
person’s right to
access that information.
35.
There is no evidence to suggest that the complainant was using her
positi
on within NSALG to access information which the Council admits it
would have provided had her request been sanctioned by that
organisation.
36.
It is true that the complainant has used social media to discuss her
request with others.
In the Commissioner’s
opin
ion
the complainant’s
comments on the TrollhunterX website fall a long way short of harassing
the Council.
He considers that
the complainant’s posts
are
no
thing more
than
the
venting
of
frustration at not being able to access information
from a public auth
ority
which she believes would assist her in
determining the legal status of the Council’s allotment site
.
37.
The Commissioner does not find the
complainant’s
comments to be rude
or intemperate
and in his view they
were
certainly
not made to ca
u
se
annoyance
to the level which the Council would have us believe.
38.
Additionally the Commissioner is obliged to point out that all public
authorities are open to criticism of one type or another, whether it is
justified or not. Such criticism is a characteristic of a fr
ee open and
democratic society.
39.
It is apparent that the Council had formed its opinion about the
vexatious nature of the complainant’s request as early as 20 October
2014 and that this was made solely on the disclosure made by the
complainant about her sta
tus within NSALG.
40.
The complainant made no mention of the Council in her posts
on
the
TrollhunterX website until after 20 November 2014.
The posts
were not
considered
by the
Council
until after it
had decided the complainant’s
request was vexatious. Even i
f it had been able to consider the posts,
the Commissioner would not agree with the Council that they describe a
vexatious intent
or a call to the masses to make requests under the
FOIA in a concerted campaign
.
41.
The Commissioner’s decision is that the compl
ainant’s request is not
vexatious and that the Council has inco
rrectly applied section 14(1) to it.
Reference:
FS50558878
8
Right of appeal
42.
Either party has the right to appeal against this
d
ecision
n
otice to the
First
-
tier Tribunal (Information Rights). Information about the ap
peals
process may be obtained from:
First
-
tier Tribunal (Information Rights)
GRC & GRP Tribunals,
PO Box 9300,
LEICESTER,
LE1 8DJ
Tel: 0300 1234504
Fax:
0870 739 5836
Email:
GRC@hmcts.gsi.gov.uk
Website:
www.justice.gov.uk/tribunals/general-
regulatory
-
chamber
43.
If you wish to appeal against a
d
ecision
n
otice, you can obtain
information on how to appeal along with the relevant form
s from the
Information Tribunal website.
44.
Any Notice of Appeal should be served on the Tribunal within 28
(calendar) days of the date on which this
d
ecision
n
otice is sent.
Signed ......................................................
Andrew White
Group Manager
Information Commissioner
’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
