Craven GIA 786 2012
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 28 January 2013 |
| Neutral Citation | 2012 UKUT 442 AAC |
| Subject Matter | Tribunal procedure and practice (including UT) |
| Respondent | IC |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GIA 786 2012 |
| Appellant | Craven |
DECISION BY THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to allow the appeal – although this does not actually assist the appellant in the eventual outcome.
The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 20 December 2011, following the paper hearings on 28 September 2011 and 29 November 2011 under file reference EA/2011/0129, involves an error on a point of law. The appeal is therefore allowed. The First-tier Tribunal’s decision is set aside.
However, the Tribunal’s decision is re-made in essentially the same terms:
“The Tribunal confirms the conclusion in the Decision Notice (FS50358047) that the request of 18 May 2010 was vexatious within section 14(1) of FOIA and manifestly unreasonable within regulation 12(4)(b) of the EIR. Mrs Craven’s appeal to the First-tier Tribunal is therefore dismissed.”
This decision is given under sections 12(2)(a) and 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
REASONS
The wider context of this appeal
1. Section 14(1) of the Freedom of Information Act 2000 (FOIA) allows a public authority to decline to make a substantive response (other than by simply issuing a refusal notice under section 17) to an information request which is found to be “vexatious”.
2. Regulation 12(4)(b) of the Environmental Information Regulations 2004 (SI 2004/3391) provides the public authority with a broadly equivalent “escape clause” where the request is “manifestly unreasonable”.
3. This case is one of three appeals before the Upper Tribunal concerning the proper test to be applied in determining whether or not a request made under information rights legislation is “vexatious” or “manifestly unreasonable”.
4. The present case concerns Mrs Craven’s appeal to the First-tier Tribunal (FTT) against the Information Commissioner’s Decision Notice (FS50358047) in respect of her request for information made to the Department of Energy and Climate Change. The other two appeals were Information Commissioner v Devon County Council and Dransfield [2012] UKUT 440 (AAC) (also known as GIA/3037/2011) and (Ainslie v Information Commissioner and Dorset County Council [2012] UKUT 441 (AAC) (GIA/294/2012). For convenience, and with no disrespect intended to the individuals concerned, I simply refer to the three appeals by the name of the individual requester, irrespective of their status in the proceedings either before the FTT or the Upper Tribunal (hence Craven, Dransfield and Ainslie).
Some preliminary observations
5. Each case, of course, has its own particular factual context (and indeed the present appeal raises an entirely separate issue concerning majority decisions in the FTT). However, the common legal issues around the meaning of section 14(1) and regulation 12(4)(b) made it desirable to hear the appeals together, or at least within a short timeframe. Listing problems meant that my original intention to hear all three appeals together foundered. However, I was able to hold oral hearings of Dransfield and Ainslie on 14 November 2012, followed by this appeal on 29 November 2012 at Field House in London.
6. The Information Commissioner (IC), the First Respondent in this appeal, was represented by Mr Tom Cross of Counsel, as in both Dransfield and Ainslie. The Department of Energy and Climate Change (DECC), the Second Respondent, was represented by Mr James Cornwell of Counsel. Mrs Craven appeared in person. I am grateful to all three for their submissions. I have tried to make allowance for the fact that Mrs Craven, whatever her skills in other areas, is not a lawyer. I just make two further preliminary observations.
7. First, of this troika of appeals, I have treated Dransfield, the first of the three appeals to be lodged with the Upper Tribunal, as the lead case. I have therefore considered the scope of section 14(1) of FOIA in some detail in that decision. My decisions in Craven and Ainslie, insofar as they concern the meaning of a “vexatious request” under FOIA, therefore need to be read in the light of that decision and in particular the passage in Dransfield at paragraphs 24-39. The question of how far (if at all) the test for a “manifestly unreasonable” request under regulation 12(4)(b) of the EIR differs from the section 14 test, something of a side issue in both Dransfield and Ainslie, came to the fore in the present appeal, and so that issue is considered in more depth below.
8. The second point is this: I had the advantage of hearing in person from the requesters in each of the three appeals, albeit that each was in the rather uncomfortable and difficult position of being a lay person, trying to focus their arguments on legal submissions rather than factual matters, and in Mrs Craven’s case under the double disadvantage of facing two experienced counsel on the other side. Mrs Craven had opted for a paper hearing before the FTT. I return to the implications of this at paragraphs 95 and 96 below.
An outline of the particular context of this appeal
9. For present purposes this can be summarised (in very broad terms) as follows. Mrs Craven lives on a farm in Yorkshire. In 1998 official consent was given for a new North Yorkshire Moors overhead power line. Her land was subject to a compulsory wayleave and Mrs Craven was involved in a dispute with the National Grid, resulting in a court action which she lost in 2002. In 2005 and 2006 she made extensive FOIA requests to DECC (or rather that Department’s predecessor) for information relating to high voltage overhead electricity cables and in particular with regard to the relevant legal framework. Both requests were treated by the Department as vexatious under section 14.
10. On 18 May 2010 Mrs Craven made a further (and again very detailed) FOIA request relating broadly to the same subject matter, although with some changes. DECC refused to comply, again stating that the request was vexatious within section 14(1), a decision confirmed on internal review. Mrs Craven then complained to the Information Commissioner (IC).
The Information Commissioner’s Decision Notice (FS50358047)
11. The IC’s Decision Notice (FS50358047) was issued on 24 May 2011. The Summary read as follows:
“The complainant made a number of requests to the Department for Environment and Climate Change (the “DECC”) on 18 May 2010 relating to the primary and secondary legislation and other prescribed rules, regulations, and procedures governing the acquisition of land rights and the acquisition of other permissions, in connection with high voltage overhead powerlines. The DECC refused to comply with the requests under section 14(1) of the Freedom of Information Act 2000 as it deemed the requests vexatious. The Commissioner considers that section 14(1) was applied correctly to some of the requests: however he has found that some of the requests were for environmental information. During the course of the Commissioner’s investigation the DECC applied regulation 12(4)(b) of the Environmental Information Regulations 2004 to the parts of the request for environmental information as it deemed those requests to be manifestly unreasonable. The Commissioner considers that regulation 12(4)(b) was applied correctly to the environmental information. The complainant subsequently made another request for information relating to the same subject matter on 16 June 2010. The DECC did not respond to this request. The Commissioner considers that the request of 16 June 2010 was for environmental information and requires the DECC to respond to this request under the appropriate legislation.”
12. Mrs Craven then lodged an appeal with the First-tier Tribunal.
The First-tier Tribunal’s decision (EA/2011/0097)
13. The FTT first considered the appeal at a paper hearing on 28 September 2011. It declined to accede to the IC’s application to strike out the appeal (which was made on the basis that it had no reasonable prospects of success). It also adjourned the matter, given there had been a difficulty over the service of relevant paperwork. The same panel then considered the appeal on the papers on 29 November 2011. They identified the question that they had to resolve as whether the 18 May 2010 requests were “vexatious within s.14 FOIA and regulation 12(4)(b) EIR” (reasons, paragraph [25]).
14. The tribunal’s decision, by a majority, was to dismiss the appeal and to uphold the IC’s Decision Notice (EA/2011/0129). According to its reasons, the majority (the Tribunal Judge and one member) “decided the matter was finely balanced and fell narrowly in favour of the IC and DECC” while the other member decided the matter in Mrs Craven’s favour (paragraph [27]). In particular, the majority found that the public interest test under the EIR fell narrowly in favour of the Respondents (paragraph [48]).
The issues for decision by the Upper Tribunal
15. Mrs Craven made very extensive submissions in writing which she developed further at the oral hearing. Her “statement of case” for the Upper Tribunal, in effect a rather...
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Sedgemoor District Council
...It was confirmed in the Upper Tribunal case of Craven v The Information Commissioner and the Department of Energy and Climate Change [2012] UKUT442 (AAC) that the same approach can be taken to refusals under regulation 12(4)(b) for requests a public authority consider to be 17. In order to ......