The Rt Hon Louise Haigh MP
First Secretary of State
Chancellor of the Duchy of Lancaster
Minister for the Cabinet Office

Copy to:
Simon Hoare MP, Chair, Public Administration and Constitutional Affairs Committee
Richard Tice MP

Dear Ms Haigh,

Re: Freedom of Information Act 2000 – Section 14(1), the meaning of “vexatious”, and the constitutional effect of the Dransfield judgments

I write further to my recent correspondence to the Cabinet Office concerning the operation and misuse of section 14(1) of the Freedom of Information Act 2000.

I wish to raise a specific constitutional issue which, in my view, now requires examination by Government and Parliament.

Section 14(1) of the Freedom of Information Act states simply that:

“Section 1(1) does not oblige a public authority to comply with a request for information if the request is vexatious.”

Parliament did not include within the Act a statutory definition of the word “vexatious”.

Nor did Parliament set out within section 14(1) statutory tests concerning such matters as:

• the burden imposed upon a public authority;
• the motive of the requester;
• the perceived value or serious purpose of a request;
• harassment or distress to staff;
• the requester’s previous dealings with the authority; or
• a requirement for a wider or “rounded” assessment of the requester and the request.

Those concepts subsequently emerged through judicial interpretation.

In Dransfield v Information Commissioner [2012] UKUT 440 (AAC), Upper Tribunal Judge Nicholas Wikeley considered the meaning of “vexatious” and adopted the concept of a request constituting a “manifestly unjustified, inappropriate or improper use of a formal procedure.”

The Upper Tribunal also identified four broad considerations: burden, motive, value or serious purpose, and harassment or distress.

The matter subsequently proceeded to the Court of Appeal, where Lady Justice Arden endorsed a wider contextual or “rounded” approach to determining vexatiousness.

These judgments have since become central to the manner in which section 14(1) is interpreted and applied by public authorities and the Information Commissioner.

My concern is therefore a straightforward constitutional one.

At what point does judicial interpretation of an undefined statutory word cease merely to interpret Parliament’s legislation and begin, in practical effect, to create a supplementary legal regime which Parliament itself never enacted?

Parliament could have included a detailed definition of vexatiousness within the Freedom of Information Act.

It did not do so.

Parliament could have expressly authorised public authorities to take account of a requester’s motive, previous correspondence, burden upon staff, perceived value of a request and alleged harassment.

It did not expressly do so.

Nevertheless, these matters have become established components of the section 14(1) regime through subsequent case law and regulatory guidance.

I therefore ask the Cabinet Office to address the following questions:

1. What evidence exists concerning Parliament’s intended meaning of the word “vexatious” when section 14(1) was enacted?
2. Did Parliament intend section 14(1) to encompass the extensive tests and considerations subsequently developed through the Dransfield litigation?
3. If Parliament intended those tests to form part of section 14(1), why were they not expressly included in the Freedom of Information Act itself?
4. Does the Government consider that the present interpretation of section 14(1) remains consistent with Parliament’s original legislative intention?
5. Has the Cabinet Office ever reviewed the constitutional and practical consequences of the Dransfield judgments upon the right of access established by section 1 of FOIA?
6. How many section 14(1) refusals are now made annually by public authorities, and does Government monitor the extent to which the provision is being relied upon?
7. Will the Government consider amending section 14(1) so that Parliament itself provides a clear statutory definition of vexatiousness, together with appropriate safeguards against misuse?
8. Will the Government consider introducing an express public-interest safeguard before a request concerning serious wrongdoing, public safety, public expenditure, environmental risk or governmental accountability may be refused as vexatious?

This is not an academic concern.

Section 14(1) is capable of removing, in its entirety, the ordinary statutory obligation to provide information under section 1.

It is therefore an exceptional provision and, in my view, should be governed by clear language enacted by Parliament rather than primarily by an expanding body of interpretation and administrative guidance.

There is also an important distinction between a vexatious request and a person whom an authority considers troublesome or persistent.

The Act refers to the requestbeing vexatious.

It does not create a statutory category of “vexatious requester”.

Yet in practice the wider history, behaviour and correspondence of the requester can now play a substantial role in the determination.

That development deserves Parliamentary scrutiny.

I therefore respectfully ask the Minister for the Cabinet Office to commission a review of the present operation of section 14(1), including its legislative history, subsequent judicial interpretation and present application by public authorities and the Information Commissioner.

I am copying this letter to the Chair of the Public Administration and Constitutional Affairs Committee because the issue concerns both the administration of Freedom of Information and the constitutional relationship between Parliamentary legislation, judicial interpretation and executive/regulatory practice.

I am also copying my Member of Parliament, Richard Tice MP, and would invite him to consider raising these matters with the Government and, if appropriate, by way of Parliamentary Question.

The central question can, I believe, be stated very simply:

If Parliament intended section 14(1) to contain the extensive tests and criteria now applied under the authority of Dransfield, why were those tests and criteria not enacted by Parliament in the Freedom of Information Act 2000?

I would be grateful for a substantive response.

Yours sincerely,

Alan M. Dransfield

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