How do we consider burden, motive and harassment?

Burden

When considering the amount of work that would be involved in dealing with a request and whether it would impose an unreasonable burden, you need to take account of the level of resources that your organisation has at its disposal. For example, a small public authority, such as parish council, only has very limited resources because a parish clerk may be employed for just a few hours a week. Therefore, the threshold at which the burden becomes grossly oppressive is lower than for a larger public authority.

If you are a larger public authority, it is not sufficient to argue that a request is burdensome because you have only allocated a small number of officers to handle requests.

The Upper Tribunal in Dransfield advised that when assessing burden the following factors are relevant considerations:

• number;
• pattern;
• duration; and
• breadth.

Number of requests

It is common for a potentially vexatious request to be the latest in a series of requests submitted by an individual. The greater the number of requests received, the more likely it is that the latest request is vexatious. This is because the collective burden of dealing with the previous requests, combined with the burden imposed by the latest request, may mean a tipping point has been reached, rendering the latest request vexatious.

However, simply counting up the number of previous requests will not reveal the full story. You also have to take into account how you dealt with those requests. It would mitigate against the latest request being vexatious, if you have dealt with previous requests:

• poorly;
• by not responding at all; or
• by providing conflicting or confusing responses which needed further requests for clarification.

If the ICO later receives a complaint, we will expect you to properly explain how you handled the previous requests when justifying how they support your application of section 14(1). See 'How does the ICO handle complaints?'.

Pattern of requests

You may become overwhelmed, if numerous requests are made in quick succession. This includes where similar requests are submitted before you’ve had the opportunity to respond to previous ones. As the Upper Tribunal in Dransfield said:

“A requester who consistently submits multiple FOIA requests or associated correspondence within days of each other, or relentlessly bombards the public authority with e-mail traffic, is more likely to be found to have made a vexatious request” (paragraph 32).

Duration

The duration over which previous requests have been made may also be telling. Where requests have been submitted over a long period, possibly years, this may indicate that requests will continue to be made in the future. Therefore, even if the latest request appears entirely reasonable, when viewed in isolation, you may take into account the anticipated burden of those future requests when assessing burden.

Breadth

The Upper Tribunal in Dransfield commented that in the absence of any other factors that indicate a request is vexatious, a single well-focussed request is less likely to be vexatious. But it does not necessarily follow that a broader request will impose a greater burden.

Nevertheless there can, occasionally, be situations where a single request taken in isolation, imposes a “grossly oppressive burden”. This is due to the breadth of information sought that it is vexatious when weighed against its value or purpose. However, refusing it under section 14, may alienate the requester and simply lead to a complaint to the Commissioner. Where the burden such a request imposes is the sole ground for considering it vexatious, there are opportunities to deal with it more constructively. These are discussed later under 'How do we deal with a single burdensome request?'.

However, in most cases burden is only one of the factors that contributes to a request being vexatious.

Motive

Generally when handling requests under FOIA, the motive of the requester has no bearing on how you handle their request. However, it is relevant when you consider whether the request is vexatious under section 14(1).

As discussed earlier, some requests are clearly vexatious. For example, if a single request is made using offensive language. The motive is to attack the public authority rather than being a genuine attempt to obtain information. There is a clear link here between motive and the harassment of staff.

However, in other cases you may only be able to work out the motive of the requester by referring to your previous interactions with them.

When considered in the context of the full series of requests, it may become apparent that the requester has, gradually, strayed some distance from the purpose of their original request. The Upper Tribunal in Dransfield referred to this as “vexatiousness by drift”.

The example above demonstrates that where the requester has drifted away from their original reason for seeking information, there may come a point where the latest request has no, or a much reduced, value in meeting the original aim of the requester.

However, it is important to recognise that there can be legitimate reasons why the information targeted by a requester may change. For example, the responses to earlier requests may alert them to information which they were previously unaware about. Alternatively, they may be pursuing a particular line of enquiry and using the response to one request to establish the facts on which they base a subsequent request. This pattern of request making can often be adopted by journalists pursuing various leads in order to build up a complete picture of a particular event.

Harassment or distress (to your staff)

As well as unacceptable language, a request or series of requests, which make unsubstantiated allegations of criminal behaviour or wrong doing can be vexatious. Again, it is also possible that a request phrased in such terms will lack any serious purpose. Its intention being to cause offence, vent anger or otherwise attack the public authority, rather than access information.

Where the requester pursues personal grudges by targeting their correspondence towards a particular employee or office holder, this again may be evidence that their request is likely to harass staff.

A requester may seek information which you know they already possess. This may indicate their intention is simply to cause annoyance as a means of venting their anger at a particular decision. Such requests demonstrate a link between serious purpose, motive and harassment.

Other indications that the request is vexatious, may be if the requester demonstrates intransigence by:

• taking an unreasonably entrenched position;
• rejecting advice and attempts to assist out of hand; and
• showing no willingness to engage with you.

Such behaviour may also undermine a requester’s arguments that their request is a serious attempt to access information which will be of use to them.

We also recognise that a request which is the latest in a series demonstrating obsessive behaviour can have the effect of harassing staff due to the collective burden they place on staff.