A recent decision from the Information Rights Tribunal overturned a decision by the Information Commissioner and highlighted the difference between a freedom of information request that is vexatious and can therefore be legitimately refused, and one which is instead merely inconvenient or irritating.
Journalists will know how frustrating it can be when public bodies (particularly the police) routinely fail to meet legally imposed deadlines for complying with FoI requests. But the decision of the IR Tribunal demonstrates that persistence pays, and it is quite reasonable to hold public bodies to account.
In March 2021 former MP Jared O’Mara made a request for information from South Yorkshire Police pursuant to the Freedom of Information Act 2000 concerning charging referrals made outside a suspect’s relevant bail period.
On 4 May 2021, as he had yet to receive a reply he made a complaint to the Information Commissioner who subsequently ordered that South Yorkshire Police were to provide Mr O’Mara with a response to his request within 10 working days.
Eventually on 2 July 2021, South Yorkshire Police issued a response to Mr O’Mara stating their refusal to comply with his request on the basis that it was vexatious.
Mr O’Mara challenged this and asked for the Commissioner to consider the issue, who, on 24 March 2022 issued a decision confirming that the request had indeed been vexatious.
This decision was reached after consideration of information provided by the Police who advised that the request in question had been the 51st made by Mr O’Mara , and that they had often found that Mr O’Mara would chase for responses seconds after deadlines had lapsed or submit “overlapping” requests before allowing the Police sufficient time to respond to his previous submissions.
The Police stated that they believed Mr O’Mara to be acting out of a “deliberate intention to cause disruption and annoyance” to the organisation.
Whilst the Commissioner accepted that disclosure of the information was of genuine interest to Mr O’Mara, and might even be of public interest, it also found that compliance with the request would place a “disproportionate burden” on the Police.
Mr O’Mara sought to appeal this decision on the basis that he disagreed with the Commissioner’s characterisation of his request as being “vexatious”, arguing that the number of requests submitted to the Police included a significant proportion of Subject Access Requests made pursuant to the Data Protection Act 2018 which should not have been considered in relation to a request made pursuant to separate legislation.
Mr O’Mara also highlighted a number of medically diagnosed conditions in relation to which he claimed the Police had failed to make reasonable adjustments as required by law.
The Tribunal overturned the Commissioner’s original decision finding that “without doubt” Mr O’Mara’s earlier requests would have led to justifiable concerns about his motive and the value of the information that he sought, but that in his subsequent requests Mr O’Mara had “changed his ways”.
The Tribunal found that the request in question possessed all the characteristics that one might wish of a reasonable submission and therefore found the characterisation of the request as vexatious to be unreasonable.
On this basis, the Tribunal held that the Commissioner had been wrong in law to find that the Police had dealt with the original request in accordance with the relevant legal provisions and that the Police were therefore obliged to reconsider the request afresh.
The Tribunal reserved harsh criticism for the Police, stating that they had not found any evidence of a “wider pattern” of behaviour that suggested Mr O’Mara had behaved unreasonably, noting that chasing a response following the passage of a deadline could hardly be classed as harassing.
Offering the Police (and indeed any other authority dealing with such a request) a few words of wisdom, the Tribunal suggested that the burden of being chased for missing a deadline could be avoided by not missing it in the first place.
Quite right, too!