Beggs v Scottish Information Commissioner
| Jurisdiction | Scotland |
| Judgment Date | 19 December 2018 |
| Neutral Citation | [2018] CSIH 80 |
| Date | 19 December 2018 |
| Docket Number | No 15 |
| Court | Court of Session (Inner House) |
[2018] CSIH 80
First Division
Scottish Information Commissioner
Advocate (Lord) v McNamara [2009] CSIH 45; 2009 SC 598; 2009 SCLR 551
Bhamjee v Forsdick [2003] EWCA Civ 1113; [2004] 1 WLR 88; [2003] CP Rep 67; [2003] BPIR 1252; The Times, 31 July 2003; The Independent, 29 July 2003; (2003) 100 (36) LSG 41
Dransfield v Information Commissioner and anr [2015] EWCA Civ 454; [2015] 1 WLR 5316; [2016] 3 All ER 221; [2016] Env LR 9
Information Commissioner v Devon County Council and Dransfield [2012] UKUT 440 (AAC)
Chambers Twentieth Century Dictionary (Kirkpatrick ed, Chambers, Edinburgh, 1983)
Scottish Information Commissioner, FOISA Guidance: Vexatious or repeated requests (Scottish Information Commissioner, St Andrews, August 2016), para 11 (Online: https://web.archive.org/web/20171205035151/http://www.itspublicknowledge.info/Law/FOISA-EIRsGuidance/Section14/Vexatious_or_repeated_requests.aspx (3 April 2019))
Shorter Oxford English Dictionary (6th Stevenson ed, Oxford University Press, Oxford, 2007)
Administration of justice — Vexatious litigant — Request for information from Scottish public authority refused by authority as vexatious — Whether request vexatious — Whether authority obliged to review its decision — Freedom of Information (Scotland) Act 2002 (asp 13), secs 14(1). 21(8)
Words and phrases — “vexatious” — Freedom of Information (Scotland) Act 2002 (asp 13), secs 14(1). 21(8)
William Frederick Ian Beggs made a request, on 26 May 2016, for information from the Scottish Prison Service under the Freedom of Information (Scotland) Act 2002. On 24 June 2016, the SPS refused the request and thereafter refused to conduct a review of its decision, on the basis that the request was vexatious in terms of the legislation. The appellant applied to the Scottish Information Commissioner for a decision as to whether his request had been dealt with in accordance with the 2002 Act. On 13 September 2017, the Commissioner decided that the SPS had complied with the legislation. The appellant appealed against that decision to the Inner House of the Court of Session.
Section 1 of the Freedom of Information (Scotland) Act 2002 (asp 13) (‘the 2002 Act’) provides, “(1) A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.” Section 14 provides, “(1) Section 1(1) does not oblige a Scottish public authority to comply with a request for information if the request is vexatious.” Section 21 provides, “(1) … a Scottish public authority receiving a requirement for review must … comply promptly … (8) Subsection (1) does not oblige a Scottish public authority to comply with a requirement for review if– (a) the requirement is vexatious”.
The appellant was a prisoner in HMP Edinburgh, serving a life sentence for murder. In August 2014, the appellant raised a petition for judicial review in relation to disciplinary proceedings against him by the Scottish Prison Service (‘SPS’). The appellant obtained a commission and diligence from the court for the recovery from the SPS of documents regarding provision of legal representation at disciplinary hearings. Following this, the SPS provided, inter alia, statistics derived from a database. In April 2016, following a substantive hearing, the petition was refused.
The appellant subsequently made two requests to the SPS under the 2002 Act concerning the statistics provided. As a result of these requests, it became apparent that the statistics were inaccurate. The SPS explained that the error came to light when examining the original hearing reports completed on a pro forma, from which the database was compiled. They said this had arisen from a lack of understanding by the authors of the reports of the purpose of a certain tick box on the pro forma. The appellant then made a third request seeking information as to how the statistics had been compiled. The SPS refused the appellant's request for information on the basis that the request was vexatious in terms of sec 14(1) of the 2002 Act. The appellant sought to require the SPS to review its decision which the SPS refused on the basis that, in terms of sec 21(8) of the 2002 Act, there was no obligation to conduct a review where the requirement was vexatious.
The appellant applied to the Scottish Information Commissioner for a decision as to whether his request had been dealt with in accordance with Pt 1 of the 2002 Act. The Commissioner decided that the SPS had complied with Pt 1 of the Act.
The appellant appealed against that decision to the Inner House of the Court of Session and argued that the Commissioner had failed to apply the correct legal test for determining whether or not his request had been vexatious and, further, had made a decision which was irrational or otherwise vitiated on account of failure to have regard to all relevant considerations.
Held that: (1) for a request to be vexatious, there required to be no reasonable foundation for thinking that the information sought would be of value, the standard being an objective one of value in the information itself as judged by a reasonable observer, and for a request to be considered vexatious, the balance required to point to a disproportion of trouble to the public authority over benefit to the individual making the request (paras 26, 28); (2) as the information requested by the appellant could not be regarded objectively as of importance or value to him, the Commissioner was entitled to conclude that the request was vexatious (paras 30, 35); and appeal refused.
Observed while the presence of a malicious motive may point to a request being vexatious, the absence of such a motive did not point to a request not being vexatious, this being an objective standard (para 33).
Bhamjee v Forsdick [2004] 1 WLR 88 and Dransfield v Information Commissioner and anr[2015] 1 WLR 5316considered.
The cause called before the First Division, comprising the Lord President (Carloway), Lord Brodie and Lord Drummond Young, for a hearing on the summar roll, on 15 November 2018.
At advising, on 19 December 2018, the opinion of the Court was delivered by Lord Brodie—
Opinion of the Court—
[1] This is an appeal on point of law under sec 56 of the Freedom of Information (Scotland) Act 2002 (asp 13) (‘the 2002 Act’) against a decision of the Scottish Information Commissioner. The appellant is William Frederick Ian Beggs. He is a prisoner in HMP Edinburgh serving a life sentence for murder. The appellant is a very experienced litigant before the Court of Session. That experience includes, but is by no means limited to, two previous appeals against different decisions of the Commissioner. As will appear from the history narrated in the course of this opinion, the appellant is exacting when it comes to respect for what he maintains are his rights.
[2] The present appeal relates to the Commissioner's decision 152/2017, dated 13 September 2017, that a request for information made by the appellant to the Scottish Prison Service (‘SPS’), on 26 May 2016, was vexatious and that accordingly, by virtue of sec 14(1) of the 2002 Act, SPS was not obliged to comply. The request related to the provenance of certain statistical information (subsequently acknowledged to be inaccurate), which had been produced by SPS in the course of earlier proceedings for judicial review at the instance of the appellant. The proceedings for judicial review went to a hearing before Lady Wolffe. In the note of argument lodged on behalf of the Commissioner, who is the respondent to this appeal, the request is referred to as the ‘third FOISA request’. We adopt that description. The third FOISA request was in these terms:
‘All and any information held by the SPS relative to the request for and compilation of the table or matrix referred to by Lady Wolffe at para 145 of her Opinion of 26 April 2016 ([2016] CSOH 61).’
[3] SPS had refused the third FOISA request, founding on sec 14(1) of the 2002 Act, in terms of a letter of 24 June 2016. On 22 August 2016 the appellant wrote to SPS requiring that it review its decision. SPS gave notice to the appellant that it would not do so, explaining that in terms of sec 21(8) of the Act it was not obliged to conduct a review where the requirement was vexatious. The appellant applied to the Commissioner, in terms of sec 47(1)(b) of the Act expressing his dissatisfaction and requesting a decision whether the third FOISA request had been dealt with in accordance with Pt 1 of the Act. The Commissioner decided that SPS had complied with Pt 1 of the Act. The appellant now appeals that decision.
[4] The appellant presents two grounds of appeal:
‘(1) The Commissioner erred in failing to apply the correct legal test for determining whether a request is vexatious within the meaning of section 14(1) of the Freedom of Information Act 2002. She should have applied the test set out by Arden LJ in Dransfield v Information Commissioner and another … in respect of the same section [of] the Freedom of Information Act 2000. At paragraph [68] of Dransfield her Ladyship found:
“[T]he starting point is that vexatiousness primarily involves making a request which has no reasonable foundation, that is, no reasonable foundation for thinking that the information sought would be of value to the requester, or to the public or any section of the public.”
In the present case, the Commissioner recognised that the information requested was important to the appellant (paragraph [46] of her decision). Thus, if she had applied Dransfield that should have led her to find that there was a reasonable foundation for the request and, therefore, that it could not be rejected as vexatious.
(2) The Commissioner's decision was irrational in that she failed to have regard to the following relevant considerations:
(i) The...
To continue reading
Request your trial
-
Office of the Advocate General for Scotland
...that itself needs to be balanced against the resource implications of the request, and any 3 Beggs v Scottish Information Commissioner 2019 SC 247; [2018] CSIH 80 f/GIA_2782_2017-00.pdf 5 Reference: IC-129904-C3Y0 other relevant factors, in a holistic determination of whether a request is v......