Lin v The Information Commissioner & Anor

Factual and Procedural Background

The Appellant made a request for information on 3 December 2021 to Company A concerning a public statement published on 8 October 2019 about a former foreign president's doctoral degree. The Appellant sought to clarify the provenance of that statement and who issued it. Company A responded on 9 December 2021 by refusing to provide the information, citing that requests on this subject were vexatious under section 17(6) of the Freedom of Information Act 2000 (FOIA). The Appellant complained to the Respondent, who issued a Decision Notice on 13 September 2022 upholding Company A's refusal on the basis that the request was vexatious under section 14 of FOIA. The Appellant appealed the Decision Notice to the First-tier Tribunal, which considered the matter without an oral hearing and ultimately substituted the Decision Notice with one directing Company A to issue a fresh response to the request.

Legal Issues Presented

1. Whether the Respondent was correct in determining that Company A was entitled to rely on section 17(6) of FOIA to decline to issue a Refusal Notice in respect of the Appellant's request, on the basis that it was vexatious under section 14.
2. Whether Company A was relying on a claim that section 14 applies to the request (the "Reliance Issue").
3. Whether Company A had given the Appellant a previous notice stating reliance on section 14 in relation to a prior request on the same subject matter (the "Previous Notice Issue").
4. Whether, in all the circumstances, it was unreasonable to expect Company A to serve a further Refusal Notice in relation to the current request (the "Reasonableness Issue").

Arguments of the Parties

Appellant's Arguments

• The request was not vexatious, nor manifestly unjustified, inappropriate, burdensome, threatening, impolite, or an improper use of the FOIA procedure.
• The Appellant denied allegations of being a conspiracy theorist or acting in concert with others regarding repeated requests on the same subject.
• The passage of time between requests did not amount to obsessive conduct, and the Appellant was willing to accept unfavorable responses.
• The request concerned a distinct subject matter from previous requests and related to a public statement published by Company A, which was significant and straightforward.
• The Commissioner lacked sufficient evidence to support the conclusion that the request was vexatious.

Respondent's Arguments

• The Respondent upheld Company A's position that the request was vexatious under section 14, supporting reliance on section 17(6) to decline to issue a Refusal Notice.
• The Respondent considered the Appellant was acting in concert with others and was an advocate of a conspiracy theory related to the subject matter.
• The request was deemed obsessive and unlikely to be satisfied by any response from Company A.
• The Respondent did not argue that the request was threatening or impolite, nor that it was burdensome to respond to in isolation.

Table of Precedents Cited

Court's Reasoning and Analysis

The Tribunal began by clarifying the relevant statutory framework under FOIA sections 1, 14, and 17, particularly focusing on section 17(6) which allows a public authority to refuse to issue a further Refusal Notice if it has previously issued one on the same subject and it would be unreasonable to issue another.

On the Reliance Issue, the Tribunal found that Company A was relying on section 14 to treat the request as vexatious, satisfying the first condition of section 17(6).

Regarding the Previous Notice Issue, the Tribunal acknowledged the prior notice issued by Company A in 2019 treating a previous request on the same subject as vexatious. Although the previous notice did not explicitly cite section 14, the Tribunal found it sufficient for the purposes of section 17(6)(b).

However, the Tribunal expressed concerns about the breadth of the previous notice, which refused to respond to any future requests relating to the subject matter without specifying time limits or parameters, potentially conflicting with section 14(2) which requires a reasonable interval between identical or substantially similar requests.

On the Reasonableness Issue, the Tribunal undertook a full merits review of whether the current request was itself vexatious. It found insufficient evidence to support the Respondent's conclusion that the request was vexatious. The Tribunal noted that the request was focused on a distinct subject matter (the provenance of a public statement) rather than the prior subject (the doctoral thesis). It also noted the passage of nearly two years between requests, the straightforward nature of the request, and the lack of evidence supporting claims that the Appellant was acting in concert with others or was obsessive.

The Tribunal criticized the Respondent's reliance on assumptions and lack of evidential basis, including unsupported characterizations of the Appellant's motives and conduct. It emphasized that the request concerned information published publicly by Company A, which militated against the vexatious label.

Consequently, the Tribunal concluded that it was reasonable to expect Company A to serve a fresh Refusal Notice in response to the request, rejecting the Respondent's reliance on section 17(6) to avoid doing so.

Holding and Implications

The Tribunal ALLOWED the appeal.

The Tribunal substituted the Decision Notice with one directing Company A to issue a fresh response to the Appellant’s request within 20 working days, clarifying whether the requested information is held and, if so, either disclosing it or citing relevant exemptions other than section 14. The fresh response is subject to the Appellant’s right to make a new complaint to the Respondent.

The direct effect is that Company A must reconsider and respond to the request on its merits, rather than relying on the prior designation of vexatiousness. No new precedent was established beyond the application of existing legal principles to the facts of this case.