HOW TO ANSWER A FREEDOM OF INFORMATION REQUEST – LAMBETH’S OFFICIAL GUIDANCE FOR FOI CASEWORKERS: “All requests from members of the press must be shown to Press Office before they are dispatched.”

INTRODUCTION: Back in February 2017 News From Crystal Palace introduced readers to a ‘spoof’ Lambeth council Freedom of Information booklet titled “Fantastic Excuses and when to use them”(Please see: MOCK THE WEEK: FREEDOM OF INFORMATION LAMBETH-STYLE February 24th 2017) which contains ‘advice’ to their Freedom of Information staff on how to ‘deal’ with FOI requests.

News From Crystal Palace thought at the time that there was, obviously and understandably, a brief guide to FOI staff at Lambeth council on how to deal with FOI requests, possibly running to three or four pages.

It transpires there is an FOI Caseworkers guide to Lambeth council’s FOI staff. It actually runs to THIRTY pages. The guidance reveals that:

  • ALL FREEDOM OF INFORMATION REQUESTS ARE TO BE SENT WEEKLY TO THE LEADER OF LAMBETH COUNCIL
  • STAFF ARE UNDER INSTRUCTIONS TO ‘GOOGLE’ THE PERSON MAKING THE REQUEST, WHY THAT PERSON IS MAKING THE REQUEST AND TO ASSESS THE LIKELY IMPACT TO LAMBETH COUNCIL (e.g. political, media, legal, commercial, personal data)
  • STAFF MUST REFER TO A ‘STRATEGIC ISSUES’ LIST TO SEE IF THE REQUEST IS POLITICALLY SENSITIVE
  • STAFF MUST SHOW ALL REQUESTS FROM A MEMBER OF THE PRESS TO THE PRESS OFFICE
  • THE PRESS OFFICE REVIEWS ALL FOI REQUESTS FROM THE MEDIA AND JOURNALISTS 

What follows, with some parts removed on the grounds of not wanting to bore our readers, is the genuine article. Words and sentences have been highlighted in bold type by News From Crystal Palace as we consider them relevant / important.

Details of the caseworker guide are in a much fuller report by the Campaign for Freedom of Information on FOIs and London councils.To read the full report please go to:  https://www.cfoi.org.uk/wp-content/uploads/2019/03/FOI-good-practice-a-survey-of-london-local-authorities.pdf

Caseworker guidance: Managing Freedom of Information and Environmental Information Regulation Requests

  1. INTRODUCTION

1.1 The Council is required to respond to information requests under the Freedom of Information Act 2000, Environmental Information Regulations 2004 and Data Protection Act 1998.

1.2 In Lambeth the Customer Contact Centre acknowledge and log new requests and the Corporate Complaints Unit manage and respond to requests on iCasework.

1.3 The guide is aimed at caseworkers based in the Corporate Complaints Unit. It offers a practical guide to dealing with information requests under the Freedom of Information (FOI) Act 2000 and the Environmental Information Regulations (EIR) 2004. (Requests under the Data Protection Act (DPA) 1998 are dealt with separately)

3. SERVICE LEVEL AGREEMENT

The following Service Level Agreement is in place for FOI/ EIR requests

FOI request logging and acknowledging 2 working days

FOI team review request and contact service for information 48 hours from when request is received in CCU Service area reviews request and completes the following as appropriate

Confirm they do not hold the information 2 working days from receipt by service

Raise concerns about releasing information/ applying and exemption 5 working days from receipt by service

Provides information to the FOI team 10 working days from receipt by service

FOI team responds to customer 20 working days from receipt by service

  1. ROLES AND RESPONSIBILITIES: “FOI REQUESTS TO BE CIRCULATED WEEKLY TO LEADER’S OFFICE”

Freedom of Information Co‐ordinator

  • Oversee the FOI process, providing advice and assistance
  • Circulate a weekly list of new FOIs received to Strategic Directors, Directors, Press Office and Leader’s Office
  • Filter out non‐FOI requests, such as business‐as‐usual requests or where information is already available
  • Allocate new cases to a caseworker within the Corporate Complaints Unit
  • Determine all request for exemptions where Public Interest Tests are applied for non‐disclosure
  • Monitor performance of service areas and ensure Directors intervene where performance drops below 80 per cent of requests answered within 20 working days
  • Manage and respond to Internal Reviews

Freedom of Information Caseworker

  • Liaise with services to gather information
  • Co‐ordinate responses to requests
  • Assist on clarifying requests with the customer
  • Advice services on the application of exemptions (FOI) and exceptions (EIR)
  • Provide advice and assistance on responding to FOI and EIR requests
  • Manage Press Office clearance
  • Maintain an audit trail on iCasework

Service Area leads

  • Identify who is best placed in their area to respond to requests
  • Act as the point of contact for their service area(s)
  • Monitor requests allocated to their service area(s), and chase where cases are becoming due
  • Notify the FOI Co‐ordinator of any requests requiring particular handling, or that have political or other sensitivities
  • Notify the caseworker immediately if there is any part of the request that cannot be answered within their service area(s)
  • Notify the caseworker within five working days if clarification of the request is needed
  • Notify the caseworker within five working days if they are concerned about releasing information covered by the request
  • Raise awareness of information access rights within their business area(s)
  • Notify the FOI Co‐ordinator of changes to their area(s) of responsibility and ensure an adequate handover of duties to a replacement officer if they are leaving post

Directors

  • Identify commonly requested information and look to make the information publicly available
  • Monitor performance for their area(s) of responsibility

FOI caseworker guidance v4.23

Drafted: May 2015

Updated: September 2015

  • Ensure there is adequate coverage and resources across their business area(s) to manage requests in line with the legislation and operating processes of the council
  • Review the weekly list of new requests received to ensure that the FOI Co‐ordinator is made aware where a request warrants particular handling requirements
  • Sign off responses from their service area(s) before they are sent back to the Corporate Complaints Unit or ensure that there are arrangements in place for this to be done by an appropriate officer

Press Office

  • Review the weekly list of new requests received to ensure that the FOI Co‐ordinator is made aware where a request warrants special handling
  • Provide responses sent to them within two working days by replying to the caseworker managing the case

HANDLING A FOI OR EIR (Environmental Information Regulations) REQUEST

5.1 All requests to the council are logged onto iCasework and acknowledged by the Contact Centre within two working days of being received. At the same time they are allocated to the FOI Coordinator.

5.2 The role of the FOI Co‐ordinator is to review the requests that have been received, filter out nonrequests (for example, business‐as‐usual requests, complaints and DPA requests), get clarification where the request is not clear, then allocate to a caseworker. When a new case has been allocated to you, you will receive an e‐mail notification from iCasework.

5.3 Your role at the beginning of the process is to prime the business area of any special handling circumstances they should be aware of when responding to the request and what they need to be aware of. For example, if the request is from a member of the press, a councillor, an ex‐councillor or has been sent nationally or to all London councils.

5.4 It is acknowledged that some requests are complex and you may not be aware of all of the potential sensitivities around a request. You can only include information and guidance that you know of – there is an onus on the service, as the information owners, to identify where, for example, there is political sensitivity or commercial sensitivity.

5.5 Tasks. When you receive a new request from the FOI Co‐ordinator you should:

 Read and understand the request it is important that you understand what information is being requested. This will help you to identify any important context around it (political, media, legal, commercial, personal data) that warrants special handling.

 Use your judgment when you do this – some requests will be straightforward and a limited amount of research will be necessary, others will be more complex and require more careful consideration. You may want to consider all or some of the following when you are assessing a request:

o Google the requester to understand who is making the request, why and assess the likely impact to the council (e.g. political, media, legal, commercial, personal data).

o Review previous requests from the requester in iCasework.

o Review information available already in the public domain on the request. Two suggested searches are

(i) Google search key words from the request and look at other local authority responses;

(ii) Google key words from the request and include the keyword ‘Lambeth’ to see what information is already available on our website.

The council publishes a number of datasets already. These are listed on http://www.lambeth.gov.uk/open‐data (if the information is already available we can provide a link to it and do not need to provide it again).

o Review previous responses on the topic that have been answered by searching on iCasework.

Refer to the ‘Strategic Issues’ list sent round by the FOI Co‐ordinator, your local knowledge of the borough and current news to see if the request is politically sensitive.

o If the request includes information that relates to a third party (e.g. a contract between the council and a private company) the service area will need to notify the third party of the request and ask for their comments about whether the information can be disclosed (ultimately the council has the final decision on whether to release information or not but it is good practice to seek the opinion(s) of the third party).

o If the request involves any personal data (i.e. identifies a living individual who can be identified) consider Appendix A of this document and advise the service area accordingly.

5.6 If in doubt or you have any questions, speak to the FOI Co‐ordinator as soon as possible.

5.7 Complete the ‘Classify the information requested’ task to record all of the information that we have been asked to provide. You can record multiple classifications where lots of different information has been requested. It is important that all of the information is correctly classified so that we can monitor which service(s) are contributing information to the response. The Knowledge Base should be used as a reference for this task.

5.8 Set up additional actions/notes in iCasework – this is to remind you to consult other parties where a request requires special handling and/or you need to make the Press Office aware of the request before the response is issued.

Press Office: the FOI Co‐ordinator will generally notify you where there is a newsworthy element to the request and will add a task on iCasework. All requests from members of the press must be shown to Press Office before they are dispatched. Press Officer contacts are (names removed by News From Crystal Palace – Ed.)

Where possible the FOI Co‐ordinator will try to notify you of any special handling requirements that are needed when the case is received. In some circumstances, however, special handling requirements may be flagged up while the request is being dealt with by a Director, the Press Office, the FOI Co‐ordinator, from the Strategic Issues list, or by the service area directly.

5.10 Get Information request. The next step is to send requests to the service contacts asking them to provide the information that has been requested. All of the service contacts are listed in the Knowledge Base. You should request information from the service contacts using the ‘Get Information’ task in iCasework. You will need to make some amendments to the standard template which should be in the following format:

Attach a copy of the original request

Copy in the relevant director

The subject line format should be ‘FOI, due date XX/XX/2015 – Description’ (for EIRs substitute FOI for EIR). The reference number is automatically added by iCasework when you send the email.

State in the opening paragraphs

If there are multiple questions it is good practice to explain which questions you are asking the contact to answer and which questions have been referred to another service(s)

The deadline for response

If the request is local only, national or London‐wide

 If the request is politically sensitive or likely to generate press interest, or is from a member of the press

Any commercial sensitivity

Any unusual handling requirements e.g. the need to consult third parties

5.11 The deadline for the ‘Get Information’ task is automatically defaulted to 10 working days in iCasework. You can override this if there are special circumstances and more or less time is needed for this task.

5.12 Re‐allocating the request – in the event that the service comes back and says that the request is not for their area, you will need to re‐allocate to the correct service and contact. This should be done as soon as possible after the notice is received, but certainly within two working days. Once you have identified the correct person from the Knowledge Base, set up fresh ‘Get Information’ tasks in the format set‐out above. If necessary, you should also reclassify the request under the correct service area – this is important as we send out a weekly list of outstanding requests based on the data on iCasework. This will ensure any overdue cases are flagged against the correct area.

5.13 Extending the deadline – in the event that the service comes back and says they need more time to consider the Public Interest Test for an FOI request, use the template letter in iCasework and extend the deadline by 20 working days. If the request is an EIR you can claim 20 working days if the request is complex/ voluminous.

5.14 Third party information – in the event that a third party holds information it is for the service to make contact and inform them an FOI has been received (without disclosing who has made the request) and ask for any comments on release of the information. Your role is to advise them on the content of their contact with the third party.

5.15 Signing off the response – directors of each service that have contributed information to the response will need to clear the part of the response provided by their area(s). In some areas the director may have delegated this responsibility to another officer, normally a manager. The ‘Get Information’ template clearly asks for confirmation of who cleared the request. The name of the person who cleared the response has to be included if you are sending a draft to the Press Office, so it is important that confirmation is obtained (see also Section 8, ‘Press Office for more advice on clearing a response).

REMINDER AND ESCALATION PROCEDURE

6.1 In the event that the service does not respond to the ‘Get Information’ task within the deadline set, you should follow the escalation process.

(i) In the first instance, it would be a good idea to make telephone contact to ensure that the person you have asked to provide the information is not on holiday or off sick.

(ii) Use the ‘Reminder’ function in iCasework. This will automatically include a copy of your original request to the service. The purpose of the reminder is to ensure that you get the right information back from the right area on time. If the original deadline has already passed the reminder should give the service an additional 24‐hours to respond.

(iii) Attach what you have received so far by way of a draft response in iCasework (it is especially important to do this for co‐ordinated requests as it shows what other areas have provided and that they have met the deadline).

(iv) Copy in the Director of the service area where the information is being requested from. If you have still not received a response 24‐hours after the Reminder has been sent you should escalate the case to the FOI Co‐ordinator, clearly marking the e‐mail ‘FOR ESCALATION’ in the subject line. Attach a copy of the original request, the dates that any chasers were sent and include any special handling requirement or notes you want the FOI Co‐ordinator to be aware of. There is a task in iCasework that allows you to escalate to the FOI Coordinator.

The FOI Co‐ordinator will escalate directly to the Director. If this does not receive a response the FOI Co‐ordinator will escalate via the Corporate Complaints Manager and, finally, via the Director for Corporate Affairs (for persistent offenders and where response rates for the service are <80 per cent).

7 SENDING THE RESPONSE “The default position is to disclose information unless there is a good reason not to.”

7.1 The council must respond to the applicant and tell them whether or not they hold the information (there are some limited cases where the council neither needs to confirm or deny they hold the information, for example, when to do so may reveal action being taken against an individual or company).

7.2 If information is not held, simply state this and advise the requestor if it is known where the information might be held.

7.3 If the council holds the information it must be provided (disclosed) to the applicant, (in the format requested by the applicant if practicable) unless

 The information is excepted (EIR) or exempt (FOI) from disclosure

 The time limit (18 hours) will be exceeded (FOI only)

 The request is vexatious (FOI) or manifestly unreasonable (EIR)

7.4 The default position is to disclose information unless there is a good reason not to. Our role is to challenge, promote disclosure and make sure that exemptions and exceptions are properly and robustly applied. That is not to say that we should automatically take the opposing view. But where an exemption or exception is proposed we need to make sure that it is being applied correctly in terms of the FOI or EIR.

7.5 Where all or part of the information is withheld, the relevant exemption(s)/exception(s) must be stated in the response with proper reasons given. If appropriate, the response must set out the Public Interest factors considered for and against disclosing the information and explain why the decision was reached. Where there is an additional prejudice test to apply, be clear whose interests are affected and why, and whether this will happen or is likely to happen.

7.6 All responses to requests for information should set out the internal review procedure explaining the right of review and the right of appeal to the ICO.

7.7 Tasks When you receive information back from the service area you should check

 If you are handling a co‐ordinated response all directors involved in the request will need to sign‐off the response; the ‘Get Information’ template explains that when the response is provided it must identify who cleared the request. It is permissible for the sign‐off from a director to be delegated down to a sufficiently experienced and senior officer, where the circumstances dictate, but you need to know who this individual is

 Check that all questions and all parts of the original request have been answered, the formatting is correct, and the response makes sense and is written in Plain English

 Insert answers into the draft response generated through iCasework, add the Public Interest Test to iCasework and check‐box all exemptions or exceptions being applied (if you are applying exemptions or exceptions see Appendices B, C, D, E and F).

 Where an exemption or exception includes a Public Interest Test this should be cleared with the FOI Co‐ordinator before the response is sent out.

 If you are applying an exemption or exception you should use the pre‐formed templates.

Where information is not held, identify clearly where no recorded information is held. If the service area has responded with a zero or N/A, confirm with the person who generated the response whether this means zero (as in the number), ‘not recorded’ or ‘not held’. This can be very important in terms of the information we are confirming we do or do not hold.

 Where information is held, make sure any links to documents work properly and can be accessed externally.

 Check whether any third party that may have sent or supplied the information has been consulted on the request by the service area. If they have made representations not to disclose the information they will need to be consulted.

Check if the information is subject to protective markings (restricted, sensitive, protect). If this is the case, you should talk to the FOI Co‐ordinator before releasing the information.

Protective markings are not in themselves a reason against releasing information, but they may be an indication on the nature of the sensitivities involved.

 Where living individuals are named in the material, including officers of the council, check they have been consulted (and made aware that information about them is being released in advance of it being sent out). If consent has not been given by the individuals their names should be redacted (see Appendix A).

 Where statistics are given on living individuals, check they are sufficiently anonymised so the individuals cannot be identified. For example, only give partial postcode details or refer to small numbers of individuals in a range e.g. <5.

 Consider whether the response needs to be cleared by the Press Office.

7.8 After the response has been sent you should complete the closure actions on iCasework, including recording the request outcome and, where appropriate, giving reasons for delay.

7.9 When you complete the Record Request Outcome task on iCasework you will be prompted to add the response to the Disclosure Log. See Section 9 for information on using the Disclosure Log in iCasework.

8 PRESS OFFICE

Press Office

8.1 Most requests will not need to be drawn to the attention of the Press Office. This section only applies where it has been flagged up by the FOI Co‐ordinator or Director that a request needs Press Office clearance. This process will always be followed unless exceptional circumstances dictate otherwise, and with the prior approval of the Borough’s Monitoring Officer.

8.2 Press: The Press Office reviews all FOI requests from the media and journalists. Additionally, there is a weekly list of the ‘Strategic Issues’ that are considered of strategic importance. Requests that are about any of these issues must be drawn to the attention of the Press Office.

8.3 You should send the draft response to the Press Office contact and give them two days to clear the response. When you send the draft response you should confirm which Director(s) signed off the response, provide background to the request (i.e. national or local) and why it is being sent to them i.e. it relates to an issue on the Strategic Issues list. You should also give a deadline for when you need comments back.

8.4 Any comments received from the Press Office must be sent back to the Director(s) who cleared the draft response: they are ultimately responsible for signing off what is sent out.

DISCLOSURE LOG “Unless there is a good reason not to… all responses must be published onto the Disclosure Log.”

9 Disclosure log

9.1 The Disclosure Log in iCasework automatically publishes each request we receive and our response onto the public facing website. This is provided as a resource to people interested in information held about the council.

9.2 The Disclosure Log is accessible here.

9.3 You will be given an option to include the response on the Disclosure Log. Unless there is a good reason not to (which has been agreed with the FOI Co‐ordinator) all responses must be published onto the Disclosure Log.

9.4 Because the Disclosure Log is publicly available you must make sure that any personal data is removed. iCasework will automatically remove personal information from the standard template that has been merged into the response but it will not remove anything that has been entered as free‐text. You must check your response before publishing it onto the Disclosure Log.

9.5 If the request itself contains references to named individuals consider whether these also needs to be redacted before being published on the Disclosure log. You should speak to the FOI Co‐ordinator for advice.

10 USEFUL CONTACTS AND RESOURCES

Contacts:*

Richard Carter, Freedom of Information Co‐ordinator

Stephen Pollock, Corporate Complaints Manager

Tim Rodgers, Information Governance Manager

*(At time of publication of report. Email addresses and phone numbers removed by newsfromcrystalpalace – Ed.)

Useful links

SharePoint document library

iCasework live system

FOI and EIR template refusal letters

Disclosure Log: external and internal

Appendix A: FOI requests involving personal data (Not included by News From Crystal Palace – Ed.)

BUT:

Requests for information about employees

When considering any requests for information about employees, the Council will refer to the ICO guidance ‘Freedom of Information Access to Information about public authorities’ employees’.

Apart from information about salary and expenses, the council will not disclose personal information about junior officers. Senior officers should expect a greater level of public scrutiny and therefore some personal information about them may be disclosed. Any Director or above is regarded as senior. With other officers, a case by case approach will be taken that will take into account the nature of their role and the level of public profile involved.

Expenses details of expenses claimed by council officers will be disclosed.

Salaries – when the council is asked for salary information about officers, it will disclose the pay scale for the relevant post. For example, if the post is graded PO1‐3 we will disclose the salary at the bottom and top of that range. We do not regard details of the advertised salary range for a post as personal information about the officer in that post. We will not disclose the exact salary a person receives as we regard that as personal information about the officer.

Pensions – the council will not provide details of the pensions that officers receive or are likely to receive (unless this relates to senior officers earning over £150K pa, in which case these are published in our annual accounts). The council can provide details of how pensions are calculated.

CV/qualification information about employees – broad details of CVs and qualification information about senior officers will be disclosed, such as type of degree, where obtained and previous positions held. With other officers, a case by case approach will be taken that will take into account the nature of their role and the level of public profile involved.

Consultants it is the council’s view that the ICO would regard it as being in the public interest to disclose information about public funds spent on consultants. Requests concerning amounts paid to them and/or details of their qualifications will be dealt with as if the consultants were senior members of staff.

Appendix B: EIR Exceptions and the Public Interest Test (Not included in this article – Ed.)

Appendix C: FOI Exemptions and the Public Interest Test (Not included in this article – Ed.)

Appendix D: FOI Exemption Section 12 Cost of complying exceeds appropriate limit

Under section 12 of the FOIA the council does not have to comply with a request for information if the cost of compliance exceeds the ‘appropriate limit’ of £450. This equates to 18 hours at £25 per hour.

In estimating whether complying with a request would exceed the appropriate limit, we can only take into account the costs we reasonably expect to incur in:

  1. Determining whether we hold the information;
  2. Locating the information, or a document containing it;

iii. Retrieving the information, or a document containing it; and

  1. Extracting the information from a document containing it.

These activities cover the process of identifying what information the council holds and actually collating it together. The cost of these activities is estimated by identifying how much time is required per person (both staff and external contractors) to complete them. Costs are calculated at £25 per hour per person regardless of the actual cost or rate of pay. The limit will be exceeded if these activities take longer than 18 hours (as £25 x 18 = £450).

Whilst the council does not have to make a precise calculation of these costs, the estimate must be reasonable, be made on a case‐by‐case basis and according to the ICO guidance to be “sensible, realistic and supported by cogent evidence”.

In all cases, however, the response to the applicant must still confirm or deny whether the council holds the information requested (unless this alone would take over 18 hours to determine). We cannot include the cost of deciding whether exemptions apply and of any subsequent redactions. It is often the case that collating and extracting the information is very simple – perhaps printing off a large number of emails and documents – but the redaction and subsequent copying will take many hours. These do not count towards the fees limit and so a request could not be refused in this way.

Tasks

 Assessing if the 18‐hour rule applies – the service area should write back to you to inform you if any of the recorded information held by the council that falls within the scope of the request would take longer than 18 hours to determine, locate, retrieve and extract. You should ask the service to explain precisely why it will take so long to carry out this task using the standard costs template (e.g. specify the number of records that need to be searched, the time per record, and the total time to demonstrate that the 18‐hour time limit is likely to be exceeded)

 Refusing a request on time grounds – when refusing a request under section 12 you must issue a refusal notice that confirms or denies whether the council holds the information requested (unless this alone would take over 18 hours to determine) and explains how the estimate was calculated. Where possible, you should advise the applicant how to refine or reduce their request to bring it within the cost limit. Use the FOI refusal template

It is always worth contacting a requester by phone or email prior to issuing a costs refusal notice to discuss with them whether they are prepared to reduce, refine or reword their request

Aggregation of costs

If two or more requests are received from the same individual the council can combine the estimates of complying with the requests if the requests are:

 By one person, or by different persons who appear to us to be acting together or in pursuance of a campaign;

 For the same or similar information; and

 The subsequent request is received within 60 working days of the previous request

“Same or similar information” – the test for determining whether the information requested is ‘the same or similar’ is very broad as the requests need only partially relate to the same or similar information. Requests will be similar where there is an overarching theme or common thread running between them in terms of the nature of the information that has been requested.

Take care with multiple requests contained in the same letter or e‐mail as these may be for very different information. For example we may receive two requests in one e‐mail, one relating to social services, the other to a planning application. These requests are unlikely to be for ‘similar’ information and so should not be aggregated, even though they were submitted together.

If we regularly receive requests for the same or similar information, we should consider whether the information can be made available via our publication scheme.

The Fees Regulations apply to FOI requests only and do not apply to requests for environmental information under EIR. The Environmental Information Regulations 2004 have no equivalent costs limit.

We can charge for environmental information only where we have published a schedule of charges and details of when we do or do not charge. The schedule of charges should be on our website and should be updated annually. If the information is in a public register then we cannot charge for allowing a requester access to the public register.

We should not charge for information that would not cost us anything to send e.g. an e‐mail attachment. Any charge should be ‘reasonable’ and should not exceed the costs the council will incur in making the information available. We can cover the cost of the paper for photocopying or printing the information and a covering letter, and the cost of postage but we cannot charge the costs of staff time in identifying, locating or retrieving the information from storage.

If we do charge a fee we need to refer the requester to our schedule of charges within 20 working days and where we need upfront payment we should tell them, together with the amount and methods of payment. Until payment is received we do not have to provide the information.

Appendix E: FOI exemption Section 14 Repeated or vexatious requests: “A judgement made on the request not the requester.”

If a requestor is vexatious or making repeated requests or is part of an orchestrated campaign, section 14 may apply – but this should only be used as a last resort and is a judgement made on the request not the requester.

Section 14 allows a local authority to refuse to respond to a request if it is “vexatious”. “Vexatious” is not defined in the Act, however, it means a request that is unnecessarily onerous, mischievous, or disproportionate to the aims of the Act – a case that would take people away from local authority core duties with little public benefit to be gained from the information being released.

Requests which will cause distress or harassment to colleagues may also be vexatious. There have been a number of ICO decision notices on this subject which may be useful as guidance. These are available on the ICO website. However, you should remember that each case is decided on its own merit so these case studies are for guidance only and do not set a precedent.

One case of particular relevance was decided in 2012 by the Upper Tribunal (UT). The UT ruled on a landmark section 14 case, known as Dransfield. The UT gave clear guidance on what could be vexatious and identified the guiding principles to be followed. Following this case the ICO issued new updated guidance. This, in accordance with Dransfield, puts the emphasis on the disproportionate nature of a vexatious request, and the disruption dealing with it would cause, with no overwhelming public benefit to negate the disproportionality. There is no checklist for making a request vexatious and every case needs to be looked at strictly on its merits.

Tasks

 Refusing a vexatious request – public authorities do not have to comply with vexatious requests. There is also no requirement to carry out a public interest test or to confirm or deny whether the requested information is held. In most circumstances the authority must still issue a refusal notice within 20 working days. This should state that they are relying on section 14(1) and include details of their internal review procedures and the right to appeal to the ICO. Use the FOI refusal template

 Refusing a repeated request – there is no requirement under section 14(2) to carry out a public interest test or confirm or deny whether the information is held. In most cases the authority will need to issue a refusal notice stating that it is relying on section 14(2). If the authority has an internal review procedure then it should include the relevant details in the refusal notice. The notice must also inform the requester of their right to appeal to the ICO. Use the FOI refusal template

Appendix F: FOI exemption where no Public Interest Test required (Not included in this article –  Ed.)

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