“Silly and Daft” FOIA Requests May Be Ignored!
Information law specialist Caroline Redhead looks at how public authorities handle frivolous freedom of information requests.
At a recent presentation to local government solicitors, the Deputy Information Commissioner, Graham Smith, expressed his view that public bodies may ignore requests under FOIA if they are “silly and daft”. This guidance comes in the wake of FOI requests including, for example, as to the extent of provisions one City Council had in place in the event of a zombie invasion (the requester, having watched several films, was of the opinion that “preparation for such an event is poor” and that it is something for which “councils throughout the kingdom must prepare”) and as to the preparedness of various public authorities in Merseyside for an alien invasion (an alien, for this purpose being “a life-form that evolved on a planet other than Earth, and travelled here by any means possible”) .
Although Mr Smith said that the Information Commissioner would support moves to introduce a specific exemption for frivolous requests, he said that “silly and daft” requests would be covered by existing guidance on vexatious requests.
Readers will recall that FOIA does not oblige a public authority to comply with a request for information if the request is “vexatious” and has issued detailed guidance on what amounts to a “vexatious” request. As with many decisions made in relation to requirements of FOIA, recipients of a request which may be considered “vexatious” will have to carry out what the ICO’s guidance describes as a “flexible balancing exercise”, looking at all the relevant facts and circumstances. Other than to say that the term “vexatious” is intended to have its ordinary meaning (i.e. that there is no link with other legal definitions – such as, for example, “vexatious litigants”), the ICO has not published a rigid test or definition. The key question is whether or not any individual request is likely to cause distress, disruption or irritation without any proper or justified cause.
To assist in identification of a request which would be “vexatious”, the ICO Guidance recommends consideration of the following questions (taken in the context of all relevant facts and circumstances – including the history of the request, if appropriate):
• When will a request fairly be seen as obsessive?
• Is the request harassing the authority or causing distress to staff?
• Would complying with the request impose a significant burden in terms of expense and distraction?
• Is the request designed to cause disruption or annoyance?
• Does the request lack any serious purpose or value?
It is also, of course, important to remember that FOIA is “applicant blind” – i.e. no matter how difficult the authority considers the requester to be, it is the request and not the requester which can be ignored for being vexatious. The only circumstances in which the behaviour of the requester may be taken into account is if the request continues the behaviour.
It will be interesting to see whether there is any progress towards a specific exemption being introduced for frivolous (or “silly and daft”) requests. In the meantime, readers may form their own views on how likely it is that (and the extent to which it is appropriate that any time and money should be expended in investigating whether) councils, the police or fire services and NHS Trusts around the country have developed alien or zombie defence plans, which one assumes is what the Deputy Information Commissioner was getting at when he said that “silly and daft” requests can safely be ignored.
In passing, you may be interested to know (if you do not already) that although Wolverhampton City Council holds a comprehensive and wide-ranging emergency plan, it has not specifically made any plans for the defence of Wolverhampton against a Zombie attack. Further, in the event that there is an outbreak of “an outbreak of zombies” in Peterborough, Peterborough City Council, although it does not have a specific plan in place to deal with zombies, has a major incident plan in place which, it is confident, would be able to cope in the unlikely event of an outbreak of zombies. Only Bristol, so far as the writer is aware, has in place a contingency plan for handling zombie outbreaks, which categorises risk (from “ambient” to “zombie pandemic level – concentrated outbreak, with infection levels over 30%”) and sets out health and safety, procurement and customer service implications as well as listing training opportunities.