Former lecturer Joe Whitaker wins appeal against judgement of Information Commissioner
Tribunal agreed that Information Commissioner erred when supporting the view of the UoB that FOI requests were vexatious.
Joe represented himself at the tribunal. Here's the relevant text from the tribunal's judgement .
Conclusion and remedy
32. The Tribunal finds that the oral evidence presented by the Appellant
merits careful consideration in terms of its cogency and credibility.
33. In terms of cogency, the fact that the Appellant is part of a larger group of
individuals interested in specific issues at the University of Bolton does not
in and of itself make his requests vexatious.
34. The University’s reaction to his information requests seeks to place him
into a group of individuals who, in its view, are carrying out a vindictive
and, by implication, unjustified and disproportionate campaign against the
University.
35. That has been the University’s reaction but, having heard directly from the
Appellant, the Tribunal is satisfied on the balance of probabilities that this
is likely to have been an overreaction in respect of this individual and in
respect of these requests.
36. In terms of credibility, the Tribunal finds that it was dealing with an
Appellant who presented his reasons for making the information requests
in reasonable language and for an understandable purpose. It is perhaps
unsurprising that, having retired from the University as a Senior Lecturer
after 24 years’ service, he would maintain an interest in the institution.
37. That purpose was to find out why and how certain financial transactions
relating to the Vice Chancellor and the disposition of University funds had
been made and deployed.
38. Echoing the meaning of “vexatious” in the Court of Appeal’s decision in
Dransfield that there was no comprehensive or exhaustive definition of
what comprised the conduct within section 14 (1) FOIA, the Tribunal notes
the higher Court’s reminder:
I consider that the emphasis should be on an objective standard and that the starting point is that the vexatious and is primarily involves making a request which has no reasonable foundation, that is, no reasonable foundation the thinking that the information sought would be of value to the request, or to the public or any section of the public. Parliament has chosen a strong word which therefore means that the hurdle of satisfying it is a high one and that is consistent with the constitutional nature of the right. The decision-maker should consider all the relevant circumstances in order to reach a balanced conclusion as to whether a request is vexatious. If it happens that a relevant motive can be discerned with a sufficient degree of assurance, it may be evidence from which vexatious and as can be inferred. If a request pursues his rights against an authority out of vengeance for some other decision of its, it may be said that his actions were improperly motivated but it may also be that his request was without any reasonable foundation. But this could not be said, however vengeful the request, if the request was aimed at the disclosure of important information which ought to be made publicly available [emphasis added].
39. For these reasons, and echoing the points made in Paragraphs 21 to 28
above in this judgement, the Tribunal finds that both the University and the
Information Commissioner erred in believing that, as a matter of fact,
these information requests were vexatious within the terms of section 14
(1) to the extent that no response was necessary to the requests.
40. In essence, the University of Bolton “drew up the drawbridge” too early in
respect of this Appellant and engaged the section 14 refusal in a manner
in which it was not entitled to do.
41. It failed to engage at all with the Appellant’s requests but appears to
have decided in advance and as a matter of policy not to respond to
enquiries relating to the matters he raised.
42. The University failed to recognise that section 1 of FOIA gives a
person requesting information the right to have that information
unless it can show that one of the exemptions set down in the Act is
engaged.
43. It is the clear view of this Tribunal that the University of Bolton has
failed to do so as regards section 14. The requests had a serious
purpose and we are not persuaded on the evidence, such as it was,
from the University that that they would, by design or otherwise,
cause harassment or distress. We are also not persuaded that
responding to them would place an unreasonable burden on the
University, because such information - as the Appellant argued -
should be readily available.
44. We were surprised to learn that ‘responding to any request is a duty
that is undertaken by staff members in addition to their existing roles’
[page 84 OB] and that as a public body the University does not have
a more coherent way of dealing with FOIA requests.
45. For these reasons the Tribunal’s decision is that the University of Bolton
should respond to all the Appellant’s information requests, save those in
relation to the cost of the relationship with Ginetta Cars Ltd, within 35
working days or rely on other FOIA exemptions for not doing so.
46. In respect of the “Ginetta Cars” information request, the Tribunal agrees
that section 21 of FOIA is engaged and that it is an appropriate response
within the Act. As the University pointed out [pages 80/81 of the OB] the
“cost of the relationship with Ginetta Cars Ltd” is available publicly by way
of the WhatDoTheyKnow.com website.
47. Our decision is unanimous.
48. There is no order as to costs.
Robin Callender Smith
Judge
4 July 2016
