It is now four years since the Freedom of Information Act 2000 came into force. While the act is about opening up the public sector to more scrutiny through access to recorded information, parliament has recognised the importance of ensuring that public authorities are protected from vexatious requests that waste time and resources.

Section 14 of the act allows a public authority to deem a request vexatious and so avoid having to deal with it. The information commissioner continues to support public authorities in this area. In a recent decision involving Cheshire Constabulary (ref: FS50157445 30/10/2008), the complainant made a request for seven pieces of information relating to the constabulary’s coat of arms and logo, its policies regarding the recording of conversations and for information about its internet domain and service provider.

The constabulary refused the complainant’s request under section 14 of the act on the grounds that it was vexatious. It was drawn to this conclusion by the complainant’s stated intent to use the requested information to assist him in setting up a website publicising his grievances. The commissioner agreed with the constabulary. He examined previous contact between the parties. He considered that this request, together with the history of complaints and other information requests, constituted a significant burden to the constabulary. He also considered that the intent behind the request would have the effect of harassing the constabulary.

The Information Tribunal is adopting a strict line on vexatious requests. In Stephen Carpenter v IC and Stevenage Borough Council (EA/2008/0046), it upheld a decision of the commissioner agreeing with the council that a persistent requestor was vexatious. The tribunal even considered awarding costs against the appellant. Though it decided not to do so, it warned that appellants should reflect on the possibility that costs in quite significant sums could be awarded against them. In December 2008, the information commissioner updated his guidance note on vexatious requests. He has also issued new guidance on dealing with requests made by people using obvious pseudonyms (such as Sue D Nym). Both can be read on his website (www.ico.gov.uk).

Audit reports are often the target of FoI requests by those who suspect wrongdoing or fraud by a public authority or body it is auditing. Where a local authority audit department is investigating allegations of fraud it often tries to claim the section 30 exemption. This allows information to be withheld if it relates to investigations and proceedings conducted by public authorities.

However, a recent decision has emphasised that this exemption can only be claimed where a public authority is holding information about investigations or proceedings that it has a legal duty to conduct. In Rochdale Metropolitan Borough Council (ref: FS50144991 10/11/2008), the complainant requested a copy of a report detailing the findings of an audit carried out by the council on a local charity. The audit followed allegations that funds were being mismanaged at the charity. The council refused the complainant’s request on the basis that the exemptions in sections 30 and 36 applied.

The commissioner decided that section 30 was not engaged, because the council did not hold the information pursuant to a legal duty to conduct the investigations or to institute proceedings. The council had argued that it had the powers to institute and conduct criminal proceedings for fraud in its own right by virtue of section 222 of the Local Government Act 1972. The commissioner noted that section 222 provides the power for local authorities to prosecute only in cases where it is ‘expedient’ to do so. He considered that in general it would not be considered expedient to prosecute where the police or the Crown Prosecution Service would be better placed to decide if a criminal prosecution was viable or warranted. In general, such powers are only used by local authorities to implement trading standards legislation, to address anti-social behaviour or in other circumstances where the prosecution relates to a local authority’s specific functions, not the general criminal law.

The commissioner also ruled that the section 36 exemption (prejudice to the effective conduct of public affairs) did not apply in this case, and even if it did the public interest lay in disclosure. He ordered disclosure of the requested information except where it consisted of personal information of junior employees of the charity where the section 40 (personal data) exemption could be claimed. However, the personal data of senior employees of the charity was not exempt other than a few sections which impact directly upon the private (as opposed to the public) lives of those individuals.

In December 2008, the information commissioner ordered Ofsted to release the names of 29,970 childcare managers and their relevant place of employment in England (see Office for Standards in Education, ref: FS50090869 01/12/2008). Ofsted initially denied holding information relevant to the request on the basis that collating the relevant material would constitute the creation of new information. The commissioner, relying on previous tribunal decisions, established that the information is held by Ofsted on a database from which it can be downloaded and was not new information which had to be created.

He also carefully considered Ofsted’s initial suggestion that disclosing the names would breach the Data Protection Act and so was exempt under section 40. In preparing the decision notice, the commissioner’s staff gathered evidence that childcare managers’ names are already often in the public domain. Directories of daycare settings with named managers are available on the internet and many childcare settings provide staff details on their own websites. He also noted that there is a legitimate public interest, especially for parents, to know the identity of managers responsible for the care of their children. In the light of this he ruled that disclosure of the information would not be a breach of the DPA and the exemption under section 40 could not be claimed.

In November 2008, the House of Lords Appointments Commission was ordered by the Information Tribunal to reveal some details of legal advice it received during the ‘cash-for-peerages’ affair, which it had been trying to withhold on the grounds that it was exempt under section 42 (see Rosenbaum v IC and House of Lords Appointments Commission (EA/2008/0035)). The tribunal did decide, though, that it was in the public interest for other details of the legal advice to remain secret.

This is only the second time that the tribunal has ordered disclosure of legal advice on public interest grounds (see Mersey Tunnel Users Association v Information Commissioner and Merseytravel ([2008] Gazette, 30 October, 18)). The tribunal made clear that its ruling in this case was because of the exceptional role in public life played by the House of Lords Appointments Commission – its remit both in proposing non-party peers itself and also in vetting party nominations for peerages gives it significant influence over the composition of parliament, and thus indirectly on its decisions.

Ibrahim Hasan, IBA Solicitors, Dewsbury