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First-tier Tribunal
(General Regulatory Chamber)
Information Rights

B e f o r e :

JUDGE CRAGG KC
JUDGE SAWARD
MEMBER WOLF
____________________Between:

____________________

Representation:
For the Appellant: In person, assisted by Dr Kirkham
For the Respondent: Did not attend
For the Second Respondent: Ms Saran, Counsel
____________________

HTML VERSION OF DECISION
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Crown Copyright ©

1. This is an appeal against a decision of the Information Commissioner (“the Commissioner”) dated 2 August 2022 referenced IC-123331-X6F8 (“the Decision Notice”). The appeal concerns a request for information made to the Department of Health and Social Care (“DHSC”) under FOIA.
2. The hearing was conducted remotely by cloud video platform. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way.
3. At the start of the hearing, the Appellant asked that Dr Kirkham be permitted to speak on his behalf and to put questions to the Second Respondent’s witness. Written notice of the appointment of a representative had not been given in advance, as required by rule 11 of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009. Nevertheless, Counsel for the DHSC raised no objection. Bearing in mind the overriding objective to deal with cases fairly and justly, the presiding Judge agreed to allow Dr Kirkham’s participation. Both Dr Kirkham and the Appellant took the opportunity to speak.
4. Upon the application of the Commissioner, the First-tier Tribunal (“FTT”) struck out the Appellant’s appeal on 9 January 2023. That decision was subject to appeal to the Upper Tribunal. By decision dated 3 May 2024, the Upper Tribunal decided that the FTT’s decision involved the making of an error on a point of law (Burton v Information Commissioner [2024] UKUT 134 (AAC)). The Upper Tribunal remade the decision and refused to strike out the Appellant’s appeal, which is remitted to the FTT for consideration at full hearing. This Tribunal has therefore considered matters totally afresh.
5. On 10 November 2020, the Appellant sent this request (“the Request”) to DHSC seeking the following information:
6. The consultation in question is the government hosted public consultation on changes to the Human Medicines Regulations to support the rollout of Covid-19 and flu vaccines.
7. On 2 June 2021, DHSC refused the request on the basis that the information requested was exempt from disclosure under section 14(1) of FOIA (vexatious requests), based on the grossly oppressive burden that complying with that request would impose.
8. Following the Appellant’s request for an internal review on 6 August 2021, DHSC upheld its original decision on 11 October 2021.
9. In the Decision Notice of 2 August 2022, the Commissioner decided that the DHSC was entitled to rely upon section 14(1) FOIA to refuse to comply with the request. However, in applying section 14(1) outside the time for compliance, the Commissioner found that DHSC had breached section 17 of FOIA.
10. The Decision Notice records that during the investigation DHSC had confirmed that it did not hold a single report, but it did hold ‘166 summary reports’.
11. The Commissioner considered the threshold to be high for refusal on the grounds of section 14(1), and appropriate where:
12. The Commissioner noted that he must balance the impact of the request against its purpose and value to determine whether the effect on the public authority would be disproportionate. DHSC had provided three of the summary reports as a sample of the withheld information. The average length of the sample reports was 30 pages whereas the largest reports were over 200 pages.
13. The Commissioner accepted that the only way to review all 166 reports was manually. He disagreed with DHSC that it would take an estimated 90 minutes to review each summary report when each report contains many references already in the public domain. An estimate of 30 minutes was more appropriate.
14. The Commissioner does not know the total number of pages being withheld but considered that 83 hours is likely to be a conservative estimate to review all the reports falling within the scope of the Request. That figure does not include the extra time of finalising redactions.
15. The Commissioner was sceptical of DHSC’s estimate that redactions would equate to more than an additional 80 hours for all 166 reports and had no idea where that figure had come from.
16. However, the Commissioner does not consider that the value or purpose in the requested information outweighs the burden compliance with the request would impose upon the public authority. The disruption, irritation or distress that compliance would impose must be considered at the time the request was made against any value that the request represents. In reaching his view, the Commissioner took into account:
17. 1 DHSC’s concerns that release of the summary reports, which contain the opinions, beliefs and concerns of those opposed to the Covid-19 vaccination, and vaccinations in general, could create panic or concern amongst the public.
18. 2 DHSC’s views that it would take ‘an unquantifiable amount of time’ to handle or appease such concerns.
19. 3 DHSC’s concerns that disclosure of such opinions, right before the rollout of the vaccination programme would lead to an increase of contacts to the departments, which would distract the DHSC from the vaccine rollout.
20. 4 Concerns that individuals, and certain groups, may have regarding the Covid-19 vaccination, or vaccinations in general. Disclosure would shed more light on such concerns and the extent to which they informed the consultation
21. 5 At the time of the Request, DHSC had already placed into the public domain information about changes made to the Human Medicines Regulations, why those changes were made and how the changes supported the vaccine rollout.
22. 6 DHSC had addressed the concerns about the safety, risks, possible side effects and harm as a result of receiving the vaccine.
23. The grounds of appeal are summarised as follows:
24. The Commissioner’s response is dated 7 October 2022. Part of that response concerns the strike out application that has been superseded by the Upper Tribunal’s decision.
25. The Commissioner opposes the Appellant’s appeal and relies upon section 14(1) FOIA. This is on the basis that a public authority can rely on the burden and costs of a request alone in order to apply section 14, subject to the high threshold for a vexatious request being met.
26. In response to the grounds of appeal, the Commissioner’s position in summary is:
27. The Appellant’s response of 19 October 2022 also responded to the strike-out application, which is no longer applicable.
28. Contrary to the view of the Commissioner, the Appellant considers that the ‘value and serious purpose’ of the request tips the balance in favour of release, over burden because:
29. The time, effort and cost expended by DHSC in maintaining their position of declining/refusing to provide the FOI requested information is likely greater than would be expended in simply providing the information.
30. The Appellant contests how the Commissioner and DHSC have concluded that “the overall content of the consultation reports was already represented in the public domain, with the arguments against the vaccine contained therein”. There has been only one narrative presented to the public by the UK Government (amongst others). That is (i) that Covid-19 vaccines are essential (ii) there are no other options, no other successful treatments (iii) that Covid-19 has been far more deadly/dangerous than it actually is (iv) that the benefit of Covid-19 vaccination outweighs risk from Covid-19 disease pretty much for all people (currently healthy or not) in all age groups and (v) that the vaccines would prevent transmission and reduce infectivity.
31. The relevant provisions of FOIA are as follows:
32. FOIA does not define what is meant by ‘vexatious’. It is apparent from the wording of section 14(1) that it is the request that must be vexatious, not the Appellant. The Upper Tribunal gave guidance in Information Commissioner v Devon County Council and Dransfield [2012] UKUT 440 (AAC), as upheld and clarified by the Court of Appeal in Dransfield v Information Commissioner and Devon County Council [2015] EWCA Civ 454. As noted by Arden LJ in the Court of Appeal, the hurdle of showing a request is vexatious is a high one:
33. The Upper Tribunal’s decision in Dransfieldprovides more detailed guidance that was not challenged in the Court of Appeal. The ultimate question is, “is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA?” [43]. In the context of reviewing the Commissioner’s Guidance, the Upper Tribunal highlighted “the importance of adopting a holistic and broad approach to the determination 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” [45]. Arden LJ in the Court of Appeal also emphasised that a “rounded approach” is required [69].
34. Overall, the purpose of section 14 is to “protect the resources (in the broadest sense of that word) of the public authority from being squandered on disproportionate use of FOIA” (Upper Tribunal at [10]).
35. In Craven v ICO & Department for Energy and Climate Change [2015] EWCA Civ 454 the Court of Appeal accepted “there is no warrant for reading section 14 FOIA as subject to some express or implied qualification that a request cannot be vexatious in part because of, or solely because of, the costs of complying with the current request.”[85].
36. This has subsequently been confirmed in Cabinet Office v Information Commissioner and Ashton [2018] UKUT 208 (AAC), in which the Upper Tribunal stated, having considered the relevant case law:
37. The role of the Tribunal is governed by section 58 FOIA. This requires the Tribunal to consider whether the Commissioner’s Decision Notice is in accordance with the law, or, where the Commissioner’s decision involved an exercise of discretion, whether he should have exercised it differently. The Tribunal may review any finding of fact on which the Decision Notice was based (section 58(2)). This means that we may review all the evidence provided to us (even if that evidence was not before the Commissioner) and make our own decision on the merits.
38. The main issues for the Tribunal to determine in this appeal are:
39. The scope of the Request
40. Whether the Commissioner was correct to uphold the decision of DHSC to rely upon section 14(1) of FOIA in refusing the Appellant’s Request.
41. The documentary evidence comprises an open bundle of some 786 indexed and paginated pages, plus a closed bundle and supplementary closed bundle consisting of the withheld information. Shortly before hearing, the Tribunal received skeleton arguments from both the Appellant and DHSC.
42. It emerged during the hearing that a gist of the CLOSED material had been produced when the appeal was previously before the Tribunal, which was omitted from the bundle, although it was sent to the Appellant on 3 March 2025. The gist was submitted during the hearing and read out by the presiding Judge for the benefit of the Appellant, who was afforded opportunity to comment.
43. The panel has carefully considered the evidence in its entirety.
44. The closed bundle and supplementary closed bundle are held under Rule 14(6) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, in accordance with the Tribunal directions made on 8 October 2024 and 24 January 2025, respectively. The entire hearing was held in open session. It is sufficient for us to provide all our reasons for our decision in a single, open judgment.
45. At the hearing, the Tribunal heard oral evidence from Ms Holt-Taylor, a Senior Civil Servant employed as Deputy Director for Vaccines and Immunisation Strategy and Systems within the DHSC.
46. Ms Holt-Taylor was a straightforward witness, answering questions put to her in cross-examination by Dr Kirkham with care and as much clarity as could be expected. She was not the person who made the decision to withhold the information and was naturally cautious of revealing information within the CLOSED bundle.
47. When asked how similar the 166 reports are, Ms Holt-Taylor said that they look similar, but the content differs. When it was put to her that none of the titles within the reports are sensitive, she replied “I don’t have them all in my head, but I suspect not”. They are just titles covering different topics. There are very few titles but lots of text that looks like a mechanism to pull together a lot of information under each title.
48. “Probably 95%” of the report that Ms Holt-Taylor was looking at on-screen is free text. She said it might vary from one report to another. There are no charts or word clouds. Quotations are “topped and tailed”, and you can see key themes. If the free text was taken out, then Ms Holt-Taylor does not think that it would provide the information requested. The headings would not be intelligible. The summary that had been published is more intelligible.
49. The reports are different lengths. A company was used to compile them. Information had been taken directly from the responses. Ms Holt-Taylor had “no idea” how much the company would have changed. Advice would have been given to Ministers on the gist of the responses to the public consultation. There is no additional document providing a summary.
50. When asked about the harm in applying the public interest test, Ms Holt-Taylor explained that the exemption is applied at the time of the request, which was in the Covid-19 pandemic. The responses strayed into different topics. When something goes out with the Government banner, it can be interpreted more authoritatively than something an individual puts out.
51. The raw text was collated into 166 reports. Without looking, Ms Holt-Taylor could not give a flavour of the information to which exemptions under section 35 or 36 might be claimed. The exercise would need to be performed on all reports.
52. The responses included statements and assertions as fact whereas the opposite is fact. As they involved other people in the Covid-19 response, it would cause real alarm and concern for people. Even if the Government said it was not true, it would definitely cause some real concerns for individuals involved in the situation including those working in it e.g. nurses. Damage would be caused.
53. Ms Holt-Taylor could not say if section 36(1) FOIA was applied to the whole of the reports. To apply section 36, ministerial approval would be sought. This does not mean a summary of the documents would be provided. Paper records were not searched to her knowledge. If there had been an electronic ministerial note, then Ms Holt-Taylor would expect it to have been caught in the data search.
54. In re-examination, Ms Holt-Taylor was taken to her exhibit 4 [OB632], being the clearance checklist for the government response on the consultation. Paragraph 7 [OB635] states: “Due to timing constraints and the overwhelming number of responses received, we have been unable to provide quantitative analysis of the responses. This approach was approved by SoS on 18 September given the circumstances.” She confirmed this to be the summary report referred to in evidence.
55. In answer to the Tribunal’s questions, Ms Holt-Taylor confirmed that this was an unusual consultation from the volume of responses. She agreed that it showed considerable public interest at that time. However, she also thought the interest was from certain parts of the public. It cannot be taken as generic public interest.
56. Counsel for the DHSC accepted that the resources available to the DHSC are a relevant consideration when looking at the burden for the purposes of section 14 FOIA. However, the exercise under section 14 FOIA is to consider the burden upon the DHSC versus the value of the request. A conservative approach should be taken to the resources of DHSC. It has a significant budget, but that budget is for the primary purposes of the department rather than FOIA requests that are excessive. It would squander resources better used elsewhere.
57. If the wide resources of a department are sufficient to meet any request, it would open the door for public funds to be squandered. It was not the correct approach to balance the cost of compliance compared with the whole budget of the department. The budget is relevant, but it is not a “trump card”. Counsel acknowledged that it is a “difficult job” identifying where the limit lies, for which there is no guidance. Counsel suggested that the point taken on appeal that the cost of compliance is a “drop in the ocean” compared with the budget is the wrong approach. Instead, the focus should be on looking at the value of the Request.
58. Counsel submits that the situation is not comparable with a parish council, say, whose work is not as significant. It is comparable with the Craven case where 3 to 4 working days to achieve compliance was found to be excessive. Here, the information is of some value and there was significant interest in the public consultation, but the Request involves a grossly disproportionate exercise. The burden outweighs the value.
59. The Commissioner recognised (in paragraph 61 of the Decision Notice) the concerns that individuals, and certain groups, may have regarding the Covid-19 vaccination, or vaccinations in general. He recognised that disclosure, and compliance with the Request, would shed more light on such concerns and the extent to which they informed the consultation. However, at the time of the Request, DHSC had already placed in the public domain the Government’s response to the consultation. It gave information about the changes made to the Human Medicines Regulations, why these changes were made and how these changes supported the vaccine rollout.
60. The ‘clarity on proposals” section of the Government response [OB585] dealt with the consultation responses in three bullet points, which were the key areas of concern. This amply addressed the concerns and reassured those responders.
61. At all times it was intended to review the proposals set out in the consultation document. There followed a review report published by DHSC on 5 April 2022 [OB595] explaining the key changes to the proposals as a result of the consultation. Only ten responses were received to the review. Following subsequent consultation, DHSC published the outcome of ‘Amendments to the Human Medicines Regulations 2012 to support the ongoing delivery of COVID-19 and influenza vaccination: consultation response‘ [OB612]. A total of 220 responses were received and a breakdown of respondents given [OB617].
62. Attention was drawn to the Tribunal’s discretion to take into account changes in circumstances post-dating the Request in order to conclude that it should not order disclosure of the information requested (Soh v IC & anor [2016] UKUT 249 (AAC) at [70-71] and section 50(4) FOIA). Counsel argued that the value of the requested information has diminished so much by the reports that have happened since, that it would be an inappropriate to use FOIA to require disclosure now. Superficially, the volume of responses might indicate high public interest. However, the interest was in a different collateral purpose said to be about making vaccines compulsory. The consultation was not about that. DHSC acknowledges some public value but not purely from the number of responses.
63. The Request was vexatious, and the Tribunal is invited not take any steps as there is no value at this stage in considering it.
64. Dr Kirkham spoke to the Appellant’s skeleton argument. He began by stating that it is agreed that the only issue in dispute is section 14 FOIA.
65. In reference to Kirkham v Information Commissioner [2018] UKUT 126 at [34], the task of the Tribunal is insistent and investigatory where an estimate of burden is delivered. The public authority is responsible for providing assistance and performing searches that precisely reflect the Request, at [12]. Whilst Kirkham concerned section 12 FOIA, it is the same exercise if not broader for section 14. The reasons for non-disclosure are that the DHSC do not want the information out there.
66. Dr Kirkham was able to cross-examine a senior civil servant and even then it cannot be said what happened at the time. The evidence was quite speculative.
67. Five steps are advocated by the Appellant: (1) identifying what, if any, information falls within the Request (2) determining how much work it would take to extract the material in question (3) determining the likely redaction burden (4) attributing burden (5) weighing the burden with the value of the Request.
68. Dr Kirkham maintains that DHSC has not grappled with construing the Request. The Appellant asks for ‘the’ summary report, which is assumed to be in the report (or at least in the executive summary). In other words, the summary of the summary is sought as well as any statistics provided and specific recommendations. If that material does not exist in the report, then it does not have to be provided. The information may be the titles or section headings, or they may be irrelevant.
69. Now that reliance on section 12 is withdrawn, the amount of work involved to extract the material is presumed to be 18 hours at most. This is not a long exercise. They could top and tail the reports and apply the redaction burden.
70. It is absurd to interpret the Request as nearly 3,000 pages of summary.
71. The “idea that a civil servant would cause ‘distress to staff’ by a single sentence of generalised criticism is fanciful.”
72. The task also involves weighing the public interest (or value) as it then stood at the time of the request: Home Office v Information Commissioner and Cruelty Free International [2019] UKUT 299 (AAC) at [20].
73. The Appellant is not like Dransfield who was bombarding the FTT with emails. The Appellant is reasonable. There is also a qualitative distinction between Mr Dransfield being concerned about a pothole in the street and the Appellant’s Request where a whole spectrum of people is interested.
74. A campaign of requests was being made by an individual requester in Craven and so it is not comparable either. The Appellant has only submitted one request. In this case, a large cohort of the public is interested in the matter of vaccinations. The DHSC denigrates the 200,000 submissions as mad, sad, or bad and treated the public with contempt.
75. It is asserted that the DHSC’s reliance upon Soh is misconceived. The public interest lies in scrutinizing past decision making, based on the information then before the Government.
76. Dr Kirkham suggests that a summary of some kind exists. It would be strange for the FOIA officer at DHSC to apply section 36 FOIA and consult a Minister with no explanation given.
77. The Appellant added that he has been called ‘vexatious’ but he could not have known what was involved when he made the Request.
78. The first task of the Tribunal is to determine the scope of the Request.
79. It is recorded at paragraphs 12 and 13 of the Decision Notice that:
80. Therefore, the Appellant had opportunity to revise the Request in the knowledge that the DSHC said it held 166 summary reports, yet he chose not to do so. Indeed, a main line of cross-examination of DHSC’s witness pressed her on the denial of the existence of a single summary report.
81. The sample reports which have been provided to us are in each case, so far as we can see, a record of all the information provided for that report and cannot be described as summaries. In fact, each report starts with a very short summary box containing a few words or sentences. If appears, however, that the Commissioner has decided that the whole reports (not just these short summaries) constitute the Requested material (hence the references to reports consisting of over 200 pages).
82. This has resulted in the Commissioner concluding that “the complainant has requested an [sic] large volume of information” [paragraph 45 of the Decision Notice]. We are of the view that this statement is incorrect: the Appellant has not sought the whole of the reports, but just ‘the summary’. In our view, the Commissioner’s decision on the applicability of section 14 FOIA was premised on that wrong interpretation of the scope of the Request. Having proceeded on the false premise as to what the Appellant was asking for, it was wrong to conclude the Request was vexatious because compliance would be burdensome. Further, the Commissioner has overlooked that each of the reports (long as they may be) is prefaced with a very short summary, which appears to be much closer to the information sought by the Appellant.
83. In our view, the Request of the Appellant is not so burdensome so as to engage the application of section 14 FOIA when these matters are taken into account, and we allow the appeal.
84. The statutory framework is clear that section 14 is of a different nature from the exemptions in Part II FOIA. In effect, it is a gateway before other exemptions are considered. As set out by the Upper Tribunal in Dransfield:
85. In a scenario such as this where the Tribunal finds that section 14 does not apply, the result is that the public authority has not yet fulfilled all its duties in relation to the request. Where the public authority has wrongly relied on section 14 this would amount to a failure to comply with section 1(1) and section 17. That situation differs from a scenario where the Commissioner or FTT rules that an exemption relied upon under Part II is not engaged or the public interest favours disclosure. In such circumstances, the public authority has complied with its duties under section 17 FOIA in refusing the request.
86. Thus, the Tribunal has no jurisdiction at this stage to determine any substantive exemptions that might be applied by the DHSC.
87. It follows that the Request should be remitted back to DHSC to reconsider in light of this Decision.
88. One outcome of the reconsideration might be that a decision is made that the summary sought by the Appellant is not held by the DHSC. Indeed, we are satisfied from the evidence that DHSC does not in fact hold a single summery report. However, as noted above we do know that each of the three sample reports contains a short section with the word ‘summary’ in the title, which Ms Holt-Taylor referred to in her open oral evidence. It is appropriate for the Tribunal to remind the DHSC of its duty within section 16 FOIA to advise and assist the requester.
89. For the reasons given, and as stated above, we find that the Commissioner erred in concluding that this is a vexatious Request for the purposes of section 14 FOIA and that the DHSC was entitled to rely upon section 14 FOIA and not deal with the Appellant’s Request. On that basis we allow the appeal, and a Substituted Decision Notice is issued.
90. Consequently, the Tribunal requires DHSC, as the public authority, to provide a fresh response which does not rely on section 14 FOIA.

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