Freedom of Information
Internal Review decision
Internal Reviewer
Chantelle Taylor, Advisor, Information Policy and Compliance
Reference
IR2013098 (RFI20131643 and RFI20131894)
Date
4 April 2014
Requested information
The applicant wrote to the BBC on 4 November 2013 via WhatDoTheyKnow
(RFI20131643) requesting the following information under the Freedom of
Information Act 2000 ('the Act'):
"
Please provide details of all independent investigations carried out by the BBC in to
the alleged holocaust during World War Two."
The applicant then wrote to the BBC on 16 December 2013 again via
WhatDoTheyKnow (RFI20131894) requesting the following information under the
Act:
"
Could you please provide me with the following information on the alleged murder
of 6 million jews by the Germans during World War Two known as the "holocaust":
How many hours of BBC TV Channels or Radio Stations programming were there
supporting this allegation and how many refuting it over the last five years?
Could you break the figures down for each year and seperate for TV and radio
please?
How much was paid for this information? Please seperate the figures for supporting
and refuting this allegation."
The BBC's response
The BBC replied to both requests with a single response on 20 December 2013. It
explained that it considered the requests vexatious under section 14(1) of the Act
and explained that as such, it was not obliged to respond. The BBC explained the
reasoning for its decision by referring to the Information Commissioner's guidance
with respect to vexatious requests, and determined that the requests could fairly be
characterised as 'harassing the authority' and 'designed to cause disruption or
annoyance'.
Issues on review
On 23 December 2013 the applicant wrote to the BBC to seek an internal review on
the decision reached in RFI20131643. The applicant stated that the "refusal to a
perfectly reasonable request is totally unjustified".
On 14 January 2014 the applicant wrote to the BBC to seek an internal review on the
decision reached in RFI20131894. The applicant requested a review on the basis that
the original request "seems a reasonable request".
The purpose of this review is to consider whether the BBC was correct in deciding
that both requests could be refused under section 14(1) of the Act.
Decision
I uphold the BBC's original handling of the requests and the analysis for my decision
is set out below. In considering this appeal I have reviewed the original requests; the
BBC's response; the Information Commissioner's guidance on dealing with vexatious
requests; and previous decisions of the Upper Tribunal under section 14(1).
Analysis - Section 14(1)
Section 14(1) confirms that a public authority does not have to comply with a
request for information if the request is vexatious.
The Information Commissioner's Office ('ICO') detailed guidance,
Dealing with
vexatious requests (section 14)1, was developed to help authorities determine when
a request can be refused as vexatious. Paragraph 9 of this guidance explains that
section 14(1) is designed to protect public authorities by allowing them to refuse any
requests which have the potential to cause a disproportionate or unjustified level of
disruption, irritation or distress. This position was acknowledged by the Upper
Tribunal in
Information Commissioner v Devon County Council & Dransfield [2012]
UKUT 440 (AAC), (28 January 2013).
It should be noted that the ICO has confirmed that public authorities should not
regard section 14(1) as something to be applied only in the most extreme
circumstances. Rather, authorities are encouraged to consider its use in any case
where they believe the request is disproportionate or unjustified.
Meaning of 'vexatious'
Whilst not defined in the Act, the meaning of 'vexatious' has been considered by the
ICO and in case law.
The Upper Tribunal in
Dransfield took the view that the ordinary dictionary definition
of the word is of limited use, as the question of whether a request is vexatious
ultimately depends upon the circumstances surrounding that request.
1 http://ico.org.uk/news/blog/2013/~/media/documents/library/Freedom_of_Information/Detailed_specialist_guides/dealing-
with-vexatious-requests.pdf
The Tribunal also considered two previous section 14(1) decisions by the First Tier
Tribunal before determining that 'vexatious' could be defined as the "…manifestly
unjustified, inappropriate or improper use of a formal procedure."
As a result, the ICO concluded that the key question a public authority must ask itself
is "whether the request is likely to cause a
disproportionate or
unjustified level of
disruption, irritation or distress".
Identifying vexatious requests
Section 14(1) can only be applied to the request itself and not the individual who
submits it. In practical terms, this means that an authority cannot refuse a request
on the grounds that the requestor himself is vexatious. It follows that an authority
cannot refuse a new request solely on the basis that it has classified previous
requests from the same individual as vexatious.
The ICO has produced a list of indicators as a point of reference to aid authorities in
its determination of vexatious requests. These indicators are not definitive nor are
they limiting. Public authorities may refuse a request as vexatious based on its own
assessment of all the relevant circumstances. The list includes:
Abusive or aggressive language
Burden on the authority
Personal grudges
Unreasonable persistence
Unfounded accusations
Intransigence
Frequent or overlapping requests
Deliberate intention to cause annoyance
Scattergun approach
Disproportionate effort
No obvious intent to obtain information
Futile requests
Frivolous requests
Context and application of section 14(1)
As noted above, an authority cannot refuse a request on the grounds that the
requestor himself is vexatious. Furthermore, a public authority cannot insist on
knowing why an applicant has requested information before dealing with a request.
However, paragraph 43 of the guidance confirms that an authority can take into
account the wider context in which the request is made and any evidence the
applicant is willing to volunteer about the purpose behind their request.
As at the date of the applicant's last request, the BBC had received 12 requests from
the applicant through the WhatDoTheyKnow website since October 2013. It should
be stressed that whilst this is not a decisive factor in this decision, the volume,
breadth, and pattern of those requests are relevant in terms of the burden placed on
the BBC and its staff. The applicant's previous requests cover some of the following:
Does the BBC have a policy of promoting multiculturalism? [RFI20131470]
Why does the BBC support "The Coudenhove-Kalergi Plan – The Genocide Of
The People Of Europe" AKA multiculturalism. [RFI20131648]
The total cost of the Nelson Mandela funeral coverage. [RFI20131901]
Please provide all BBC funding for the last fifteen years including gifts, loans,
sponsorship etc. from each organisation, group or individual by amount for
each year [RFI20131448].
In my view the above requests support the argument that the current requests are
vexatious because they demonstrate a considerable strain on the BBC's resources.
The applicant was advised in the original response that public authorities are not
obliged to comply with a request for information if the request is vexatious. The
applicant may also be aware that a public authority is under no obligation to explain
why a request is vexatious. Nevertheless, the ICO recommends that public
authorities include the reasoning for its decision in the refusal notice.
Having reviewed the ICO's guidance and the decisions of the Upper Tribunal, I agree
with the BBC's original decision that the following questions demonstrate that the
requests are designed to harass/annoy the BBC and cause distress to its staff. In
particular, I consider that the following questions demonstrate this:
"Please provide details of all independent investigations carried out by the
BBC in to the alleged holocaust during World War Two"; and
How many hours of BBC TV Channels or Radio Stations programming were
there supporting this allegation [the holocaust] and how many refuting it
over the last five years?
The BBC decided to classify these requests as vexatious because it considered them
to be an improper use of the Act. I do not consider that the purpose and value of
the requests provides sufficient grounds to justify the disruption and irritation that
would be incurred by complying with the requests, and therefore I consider that the
BBC was correct to classify the requests as vexatious.
Alternative approaches
The ICO's guidance recommends that before deciding that a request is vexatious,
public authorities should first consider whether there are any viable alternatives to
dealing with the request.
The vast majority of the requested information falls outside the scope of the Act.
This is because the Act does not apply to the BBC in the way it does to most public
authorities in one significant respect. It recognises the different position of the BBC
by saying that it covers information 'held for purposes
other than those of
journalism, art or literature'. This means the Act does not apply to information held
for the purposes of creating the BBC's output or information that supports and is
closely associated with these creative activities.
The BBC could have responded to say that the requested information is outside the
scope of the Act. However, I consider that it was reasonable to classify the requests
as vexatious because they are an improper use of the Act for the reasons given
above. Furthermore, the BBC has already explained to the applicant on several
occasions that information that is held for the purposes of 'journalism, art, or
literature' is outside the scope of the Act.
Finally, I apologise to the applicant for the delay in completing this review.
Appeal Rights
If you are not satisfied with the outcome of your internal review, you can appeal to
the Information Commissioner. The contact details are: Information Commissioner’s
Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF; telephone 0303
123 1113 or email
xxxxxxxx@xxx.xxx.xx.