The Scottish Information Commissioner ("SIC") will shortly be publishing his 100th decision since the Freedom of Information (Scotland) Act ("FOISA") came into force on 1 January 2005. As he finds his feet, we look at his opinion on vexatious requestors and his changing view on the use of pseudonyms.
Towards the end of last year, three decisions were published regarding vexatious requestors. Decisions 062/2005 and 063/2005 concerned the volume of requests made by a requester to a single public authority on a single day. This article looks at these cases together as they concerned the same requestor. On 24 February 2005, law firm MacRoberts made 722 requests for information to Caledonian MacBrayne ("CalMac") and 720 to the Scottish Executive, each by separate e-mail. CalMac failed to respond to the requests for information and the subsequent requests for review. The Scottish Executive initially asked MacRoberts if there were any particular requests that should be prioritised as it would not be able to respond to them all within the prescribed 20 days. The Scottish Executive later decided that the requests were vexatious. MacRoberts appealed to the SIC for a decision.
There is no definition of 'vexatious' in FOISA, so this case is particularly helpful in clarifying the issue. The Scottish Ministers' Code of Practice on freedom of information provides that irritation or nuisance caused by the applicant or by receipt of the request does not, by itself, render the request as vexatious. The Code provides a non-exhaustive list of factors that can be taken into account: whether the request has already been rejected on appeal to the SIC and the applicant is aware of this; whether there has been unreasonable refusal or failure to accept documented evidence that the information is not held; whether there has been unreasonable refusal or failure to identify sufficiently clearly the information required; whether the request can be shown to be clearly intended to disrupt the authority's work rather than for the purpose of obtaining information.
The SIC further clarified that whilst the vexatious request exemption should never be used lightly, he would be sympathetic to public authorities if a request would impose a significant burden and be considered manifestly unreasonable. What is important to note here, however, is that it is not the intentions of the requestor that should be taken into account, but the 'nature and effect' of the request.
In these two cases it was concluded that the huge number of requests for information would impose a significant burden. The SIC was of the view that 'Macroberts could not have been unaware' that the number of requests would have imposed such a burden on the two public authorities concerned. Therefore, collectively, the requests were considered to be vexatious and no information was required to be given by either public authority.
The third decision on vexatious requests considered the language used by the requestor. In decision 080/2005, Mr David Emslie made a request for information to Cathy Jamieson, Justice Minister, relating to an alleged fraud and alleged criminal activities. The Scottish Executive replied, stating that it would not provide the information as it was considered vexatious. In correspondence with the SIC, the Executive explained that the request was written in a manner which was manifestly unreasonable. It was claimed that offensive remarks were made against various individuals and the Executive felt that is was not possible to extract a request for information from the request itself.
The SIC explained the position as regards abusive language and vexatious requests. He clarified that the use of abusive or unacceptable language in a request does not, in itself, render that request as vexatious. In this case, however, he considered that in light of the language used in Mr Emslie's letter it was 'almost impossible' to discern what the actual request for information was. The SIC stated that: "In effect, the request appeared to be an opportunity for Mr Emslie to put forward his strongly held views and suspicions rather than an opportunity to make a request for information". The SIC therefore concluded that the Scottish Executive was correct to refuse to respond to the request on the basis that it was vexatious.
This position can be contrasted with the UK position where the Information Commissioner there took a similar approach to the SIC in concluding that a request that was 'framed in a way that levelled particular allegations and criticism at the Inland Revenue' which were not recognised by them, the body can 'reasonably and correctly state that they have no information to provide and are thus unable to meet' the request. This decision was overturned by the Information Tribunal, however, which stated: "If Public Authorities are permitted under the FOIA to pick and choose which requests they respond to on the basis of whether or not they approve of the language used by requesters, this would make a mockery of the legislation…it would have been a more suitable course for the Commissioner to have made further investigation of the Inland Revenue and Mr Barber before making a decision."
Before December last year, it was possible to make an information request in Scotland using a pseudonym. The advice being that the only information required to make a request valid was a means of replying to the request.
However, prior to Christmas last year, the SIC published a statement on his website which provides that the real name of the requestor must be given and if a request comes in from a name that is clearly a pseudonym, the application is invalid. There continues to be an obligation on the public authority to assist the requestor. In this regard, if an obviously false name is used, the authority should reply stating that the request will not be dealt with and that it will be considered if the real name of the requestor is used. Should there be a particular reason for the applicant not wishing to use his or her name, the SIC suggests that that person can ask a friend to make the request instead.
Of course public authorities have no powers under FOISA to investigate whether the name given is the real one, so if a request were made under the name of 'John Smith', it would not generally be possible for the authority to refuse to comply with the request on the ground that a pseudonym was used. However, if 'Mickey Mouse' is used, the situation may be clearer. The SIC himself states in his advice that there is an assumption 'built into FOISA that public authorities must generally discount the identity and circumstances of the applicant and must regard any release of information as if it were a release to the world at large.' If this is the case, the requirement that a real name be provided seems unnecessary.
The SIC's published position reflects that of the UK Commissioner who has, since November 2004, considered that as the Act requires applicants to state their name and an address for correspondence the use of a pseudonym means that, technically, it is not a proper request and could be refused on that ground. He does, however, acknowledge that unless the public authority knows that the applicant has used a pseudonym, it will be difficult to refuse a request on that ground.