Dransfield v The Information Commissioner (First Respondent) Devon County Council (Second Respondent)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLady Justice Arden,Lady Justice Gloster,Lady Justice Macur
Judgment Date14 May 2015
Neutral Citation[2015] EWCA Civ 454
Date14 May 2015
Docket NumberCase No: C3/2013/1855 & C3/2013/1901

[2015] EWCA Civ 454

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

Judge Wikeley

[2012] UKUT 440 (AAC)

[2012] UKUT 442 (AAC)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lady Justice Arden

Lady Justice Gloster

and

Lady Justice Macur

Case No: C3/2013/1855 & C3/2013/1901

Between:
Dransfield
Appellant
and
The Information Commissioner
First Respondent

and

Devon County Council
Second Respondent
Craven
Appellant
and
The Information Commissioner
First Respondent
The Department for Energy and Climate Change
Second Respondent

(1) Mr Dransfield was represented during the course of the hearing by Mr David O'Mahony (instructed through the Bar Pro Bono Unit) and now acts for himself as a litigant in person

Mr Tom Cross (instructed by Information Commissioner's Office) for the First Respondent

Ms Rachel Kamm (instructed by Devon County Counsel) for the Second Respondent in Dransfield

(2) The Appellant appeared in person in Craven

Mr Tom Cross (instructed by Information Commissioner's Office) for the First Respondent

Mr James Cornwell (instructed by the Government Legal Department) for the Second Respondent in Craven

Hearing dates: 27–28 January 2015

Lady Justice Arden

IMPORTANT ISSUES RAISED BY THESE APPEALS

1

These are separate appeals brought by Mr Alan Dransfield and Mrs Rosalind Jean Craven each raising the question of the scope of the power of a public authority (an "authority") to reject a request under the Freedom of Information Act 2000 ((" FOIA") and, in addition, (in the case of Mrs Craven) under the Environmental Information Regulations 2004 ("EIR") on the grounds that the request was "vexatious" (see section 14(1) FOIA) and (in Mrs Craven's case) "manifestly unreasonable" (see regulation 12 (4)(b) EIR). The relevant domestic and EU legislation is set out in the Annex to this judgment. The requests of Mr Dransfield and Mrs Craven were rejected by the public authorities to whom they were addressed. Mr Dransfield and Mrs Craven each applied for a review by the Information Commissioner ("the IC") but he too rejected their requests, so they each appealed to the First-tier Tribunal ("the FTT"). Mr Dransfield succeeded on his appeals to the FTT but lost on a further appeal by the IC to the Upper Tribunal ("the UT"). Mrs Craven's appeal to the FTT was dismissed by a majority. She appealed, without success to the UT. Both appeals to this court are brought against the orders of the UT (UT Judge Nicholas Wikeley) in each case dated 28 January 2013.

2

FOIA is an important, constitutional statute because it enables ordinary citizens to obtain the information held by an authority and thus to know what the authority knows. It follows that any restriction on this right must have constitutional implications. As Lord Sumption, with whom Lord Neuberger and Lord Clarke agreed, explained in Kennedy v Charity Commission [2014] 2 WLR 808, the qualifications and exemptions on the right represent a careful balance of the rights of the private citizen and those of the state:

153 The Freedom of Information Act 2000 was a landmark enactment of great constitutional significance for the United Kingdom. It introduced a new regime governing the disclosure of information held by public authorities. It created a prima facie right to the disclosure of all such information, save in so far as that right was qualified by the terms of the Act or the information in question was exempt. The qualifications and exemptions embody a careful balance between the public interest considerations militating for and against disclosure. The Act contains an administrative framework for striking that balance in cases where it is not determined by the Act itself. The whole scheme operates under judicial supervision, through a system of statutory appeals.

3

Much the same can be said about the right to environmental information, which is now the subject of the EIR, save that it was negotiated at EU level. Environmental information may be very important to the requester since it may affect the region where the requester lives or even the requester's property. The EIR implement EU legislation, now Directive 2003/4, which falls to be interpreted against the background of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (1998) (known as the Aarhus Convention). The EIR contains an extraordinarily wide definition of environmental information. Requests for environmental information fall to be dealt with under EIR, and not under FOIA: see FOIA, section 39, which exempts a public authority from compliance with FOIA if the EIR apply. There are a number of structural differences between the regimes created by FOIA and the EIR, but none of those differences seem to me to affect the issues to be decided on this appeal. Requesters who are refused information under either regime may request a review by the IC, and appeal to the FTT and UT.

4

This is the first opportunity which this court has had to consider the restrictions in section 14 FOIA and regulation 12 (4)(b) EIR. This is a lengthy judgment and so I give a summary of my conclusions in paragraphs 5 to 7 below.

THESE APPEALS IN A NUTSHELL

5

The appeals raise different and difficult questions. In my judgment, for the detailed reasons given below, this court should dismiss each appeal.

6

In Mr Dransfield's case, the request, taken on its own, is a precise and politely-worded request. There is nothing on the face of this request which could be termed "vexatious". Nonetheless the UT held that it was vexatious because of the past history of dealings between him and the authority. So the principal issue on his appeal is whether a request can treated as vexatious if it is not itself vexatious but previous requests have been. The FTT thought that the line had to be drawn at previous requests which "infected" the request under consideration ("the current request"). The UT rejected that test and held that there was no line to be drawn. Mr Dransfield seeks to uphold the test applied by the FTT. I do not accept this submission because it involves writing words into FOIA which the court may not do. The UT went on to formulate and apply guidance as to the meaning of "vexatious" which he has not challenged.

7

In Mrs Craven's case, the principal question is whether the tests under section 14 FOIA and regulation 12(4)(b) have the same meaning ("the two-tests-one-meaning issue"). I conclude that to all intents and purposes they do. The next questions are whether the IC could raise an objection under regulation 12(4)(b) when the authority had not done so, whether section 14 (2) affects the meaning of section 14(1) and whether the costs of compliance could be taken into account under both tests ("the costs of compliance issue"). I agree with the UT on those points too. I would therefore dismiss Mrs Craven's appeal also.

8

I propose to take the two appeals together, setting out (A) the requests, reviews by the IC and appeals up to the UT and then (B) the submissions on each appeal before turning to (C) Discussion of both appeals.

(A) REQUESTS, IC REVIEWS AND PREVIOUS APPEALS

History of Mr Dransfield's request

9

On 29 May 2010, Mr Dransfield made a short request to Devon County Council ("Devon CC") under FOIA for approved design drawings of a pedestrian bridge at Exeter Chief's Rugby Grounds and the lightning protection system ("LPS") results in relation to the bridge. He was concerned about public safety. Devon CC refused to give this information relying on section 14(1) FOIA. Devon CC stated that the request was vexatious because of Mr Dransfield's previous health and safety and LPS–related requests. Mr Dransfield appealed to the IC, who agreed with Devon CC that Mr Dransfield's request was vexatious. Mr Dransfield appealed to the First-tier Tribunal ("FTT").

10

The FTT noted that there had been a history of prior FOIA requests and "difficult encounters between the parties". The IC particularly relied on this history in characterising Mr Dransfield's request as vexatious. The prior requests were in a summary accepted by the FTT as follows:

• From the period 9 February 2005 to 25 June 2005, there was one FOIA request made on 11 February 2005 concerning "the Lafarge Concrete Scandal", and 16 items of correspondence on the same subject.

• From the period 1 December 2005 to 11 March 2007, there were three FOIA requests concerning the safety and LPS in relation to a pedestrian bridge at a private finance initiative ("PFI") site, and 6 items of correspondence on the same subject.

• From the period 28 January 2008 to 28 May 2009, there were 18 items of correspondence concerning health and safety files for PFI and LPS. There were 6 FOIA requests on the same subject.

11

On some occasions the tone and language of the requests had been extreme and on other occasions Mr Dransfield had been abusive of Devon CC officials. The prior correspondence was not available. He had also sent many emails until he was prohibited by Devon CC from using email.

12

The FTT did not consider that the request before them was vexatious. On its face it was simple and entirely benign. The FTT considered that the reasons for which it was refused had nothing to do with this request, but with the prior dealings between the parties. Regard had to be had to the context and history but here, unlike the usual case, there was no single underlying grievance. In such a case, there was a risk of "crossing the line to treating the requester as vexatious. That line...

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