Case Reference: EA/2022/0392
Neutral Citation Number: [2025] UKFTT 797 (GRC)
First-tier Tribunal
General Regulatory Chamber
Information Rights
Hearing date: 21 May 2025
Decision given on:
Before
Judge scherbel-ball
tribunal member cosgrave
Tribunal member wolf
Between
brendan mcferran
Appellant
and
(1) INFORMATION COMMISSIONER
(2) DEPARTMENT FOR THE ECONOMY (NORTHERN IRELAND)
Respondents
Decision:
The Appeal is refused.
REASONS
Introduction
1. This is an appeal against a Decision Notice (the "Decision Notice") of the Information Commissioner (the "Commissioner") dated 31 October 2022 (Reference IC-114852-X3N9) (the "Decision Notice"). The appeal is brought under s.57(1) of the Freedom of Information Act 2000 ("FOIA").
2. This appeal concerns whether the Commissioner was correct to determine in the Decision Notice that the Appellant's request under FOIA dated 28 March 2021 which was made of the Department for the Economy (Northern Ireland) (the "DFE") was vexatious within the meaning of s.14 FOIA.
3. The appeal was considered at an oral hearing which took place by CVP link. The Appellant attended in person, and at his request, was assisted by Professor Taylor with locating documents in the bundle. The Commissioner did not attend, having notified the Tribunal of this in advance. The DFE was represented by Dr David Sharpe KC. The Tribunal was satisfied that all parties had an ample opportunity to advance their case at the hearing. We also had the benefit of skeleton arguments prior to the hearing from the Appellant and the DFE. Prior to the hearing, I directed that the parties identify relevant documents in the bundle at the hearing. After the hearing, I also provided the Appellant with a specific further opportunity to identify relevant documents in a list. The Appellant did so and we have taken these into account.
Procedural Background to the Appeal
4. On 28 March 2021, the Appellant made a request of DFE under FOIA for the following information (the "Request"):
1. "All communications between you and Mr Lavery, whom I then wrongly believed to be Permanent Secretary of the Department for the Economy, and Mr Brennan (who replaced Mr Lavery on his retirement on 21/11/19) that relates to you / your division being appointed to respond to my communication with Mr Lavery in the matter of my allegations of misconduct / gross misconduct made against a number of departmental staff (DETI / DfE), staff of Invest NI, staff of the Insolvency Service and other related agencies.
NB You informed me on 2nd April 2020 that my communications to the Permanent Secretary of DfE had been passed to the Corporate Governance Division. Hence I ask that the communication between you and the respective Permanent Secretaries should include all those between 20th March 2020, the date of my first letter to Mr Lavery, and 31st March 2021.
2. All communication between you and others, either superiors or subordinates, regarding the appraisal of my communications relating to my allegations that was undertaken by the Corporate Governance Division of DfE of which you are the Director.
3. A copy of your report on the appraisal that you made available to Mr Brennan along with all related correspondence between you and Mr Brennan from the date you provided the appraisal to him and 31st March 2021.
Your report to include:
a. Your assessment / findings on each of my allegations.
b. Your suggested actions to be undertaken in regard to each of my allegations; should there have been a number of options on action to be taken, I expect that you will have outlined each of the options with the pros and cons associated with each.
c. The basis for your recommended option to be followed on each of the allegations. "
5. The DFE responded to the Request on 27 April 2021. The DFE stated that it considered the Request was vexatious within the meaning of s.14 FOIA. Following an internal review, on 14 May 2021, the DFE upheld its reliance on s.14 FOIA.
6. The Appellant complained to the Commissioner. In the Decision Notice, the Commissioner upheld the DFE's reliance on s.14 FOIA. Its reasons for doing so were set out at paragraphs 22 to 28 of the Decision Notice. In summary, these reasons were:
6.1. The Commissioner accepted that the Appellant held a strong belief that his request was justified. The Commissioner acknowledged that the Appellant contended that his dispute had not been fully and fairly considered previously.
6.2. FOIA is generally motive and applicant blind. It is the request rather than the requester that must be vexatious to engage s.14 FOIA. However the identity and motive of the applicant is necessarily relevant to consideration of s.14 FOIA and in this context, it was relevant to take account of the Appellant's previous dealings with the DFE.
6.3. The Commissioner had regard to previous decision notices involving the Appellant and the DFE. The focus must be on the facts of the instant case, and previous decisions are not of themselves determinative of a later request. However, the Commissioner noticed that some of the arguments accepted in a previous decision notice in 2011 continued to be relevant to this case, namely that the Appellant would continue to correspond with the DFE in respect of the underlying issues and the DFE had provided evidence to show that this is in fact what had happened.
6.4. The Commissioner considered that weight should be afforded to the fact that in 2009, an Industrial Tribunal dismissed the Appellant's employment related case and also awarded costs again him. This contradicted his position that the complaints had not been fully considered. The Commissioner could not attach any weight to the Appellant's complaints about the judge in that case.
6.5. The Commissioner accepted the DFE's assertion that the Appellant had demonstrated unreasonable persistence in pursuing his dispute, which had continued for almost 17 years (at the date of the Decision Notice). The Commissioner further accepted the DFE's assessment that the Appellant would continue his dispute whether or not the DFE complied with the Request.
6.6. The Commissioner was mindful of the high standard necessary to engage s.14 FOIA, but considered that the DFE had provided sufficient evidence to support the engagement of s.14 FOIA.
This Appeal
7. The Appellant appealed to the Tribunal on 29 November 2022. His grounds of appeal are lengthy and supported by various annexes. His grounds of appeal can be summarised as follows:
7.1. The Appellant's previous complaints have not been considered by the Industrial Tribunal or the DFE. He has written to DFE over many years in the hope that his allegations would be considered. His allegations principally concern his work on behalf of an organisation which was subsumed into Invest NI in 2002 (as further summarised below). He was delighted in 2020 when he believed that his allegations were being considered by DFE but was then disappointed when he was told in June 2020 that the allegations had been "dealt with and closed". He had believed he would be given a substantive response by the DFE.
7.2. DFE was the department with responsibility for Invest NI, the Insolvency Service and the Industrial Tribunals. He relies on previous criticisms of the DFE concerning purported limited record keeping in order to avoid obligations of transparency under FOIA and believes that this "culture" is continuing.
7.3. The Appellant's previous request in 2011 which had been found to be vexatious by the Commissioner was not burdensome and was not vexatious. The Appellant was ill at the time so could not appeal the decision.
7.4. That "any reasonable man would persistently seek justice" in light of the "damage caused by Invest NI's retaliation following his whistleblowing and the ensuing institutional cover-up." His approach in pursuing this issue is reasonable.
7.5. Had the DFE provided the Appellant with a copy of the findings of its appraisal of his allegations and answered his questions, he would have had no reason to further seek information as he would have been in possession of what he had been seeking for 17 years.
7.6. The Decision Notice had quoted assertions made by the Appellant out of context.
7.7. There would not be a heavy burden for DFE to respond to the Request. It would not require DFE to reconsider matters which had been comprehensively dealt with over a period of nearly 17 years.
7.8. His request could not be considered vexatious. The Appellant was simply seeking to access the DFE's findings on his allegations of serious misconduct.
7.9. The subject matter of the request is of public interest and relates to multiple and serious allegations of wrongdoing.
8. The Commissioner opposes the appeal. In his Response dated 27 January 2023, the Commissioner argues that:
8.1. The context and history of this matter, including the previous course of dealings between the Appellant and the DFE "speak for themselves" and describes the burden which it is anticipated that the Request would place on DFE, the motive of the Appellant, the value and serious purpose (or otherwise of the Request), and the harassment and/or distress caused to DFE's staff. These factors, as well as the holistic assessment of the case made the overall burden extremely substantial. This follows the approach and guidance provided by the Upper Tribunal in Information Commissioner v Devon CC and Dransfield [2012] UKUT 440 (AAC) ("Dransfield").
8.2. In all the circumstances, the Commissioner was correct to conclude that the request was vexatious "in the sense of being a disproportionate, manifestly unjustified, inappropriate or improper use of FOIA" - Dransfield at [82].
8.3. The Grounds of Appeal "lack the substantiality to change the Commissioner's findings in the [Decision Notice]."
9. The DFE also opposes the appeal. In summary, the DFE argues that:
9.1. The Appellant has a long history of dispute with the DFE, and its predecessor, stretching back almost 17 years and including an Industrial Tribunal, the High Court and internal organisation inquiries each of which has found no merit to his allegations. The DFE contends that the Appellant has repeatedly "reheated" and "restated" facts and grievances which have previously been considered in those tribunals, courts or internal inquiries.
9.2. The law on the meaning of vexatiousness is set out in Dransfield. In particular, the Upper Tribunal emphasised that the purpose of s.14 FOIA was to "protect the resources (in the broadest sense of that word) of the public authority from being squandered on disproportionate use of FOIA".
9.3. The DFE adopts the reasoning of the Commissioner in the Decision Notice.
9.4. The Request constitutes a disproportionate burden as the matters have already been extensively addressed over a period of almost 17 years.
9.5. It is not necessary to carry out a public interest assessment when considering the application of s.14 FOIA.
9.6. The grounds of appeal fail to identify any basis on which the Commissioner or DFE have not complied with the relevant law.
9.7. The Request was "unreasonable in all the circumstances" and would have placed a significant burden on DFE's resources. In reaching this conclusion, DFE took into account the number, pattern, duration and breadth of requests by the Appellant. As such the Request was vexatious in that it was disproportionate, manifestly unjustified, and an inappropriate or improper use of FOIA.
The law
10. The Tribunal's jurisdiction to consider this appeal is set out in s.58 FOIA. If the Tribunal considers that the notice against which the appeal is brought is not in accordance with the law or, if it involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner. In any other case, the Tribunal shall dismiss the appeal.
11. The Tribunal must consider whether the provisions of FOIA have been correctly applied and is not bound by the Commissioner's views or findings but must arrive at its own view, giving such weight to the Commissioner's views and findings as it deems fit in the particular circumstances - Guardian Newspapers & Brooke v Information Commissioner and BBC (EA/2006/0011 & 0013) at [14(3)].
12. When determining the application of s.14 FOIA, the following general propositions can be derived from the case law:
12.1. First, one of the main purposes of FOIA is to provide citizens with a qualified right to access to information and therefore a means of holding public authorities to account - Dransfield at [25].
12.2. Second, vexatiousness is not defined in s.14 FOIA, but the question is whether the request is vexatious, not the person making the request - see Boyce v Information Commissioner [2025] UKFTT 7 (GRC).
12.3. Third, the focus and rationale for s.14 FOIA is on protecting public authorities resources from being squandered in the disproportionate use of FOIA - Dransfield at [10]. Proportionality therefore lies at the heart of any assessment of whether a requested is vexatious under s.14 FOIA.
12.4. Fourth, the use of s.14 FOIA is a high threshold which must be judged to an objective standard - Dransfield v Information Commissioner [2015] EWCA Civ 454; [2015] 1 WLR 5316 ("Dransfield CA") [68] and [72], Parker v Information Commissioner [2016] UKUT 427 (AAC) ("Parker") at [45] and [50].
12.5. Fifth, whether a request is vexatious requires an assessment of all the circumstances surrounding the request to reach a value judgment as to whether the request in issue is vexatious. This is necessarily a holistic assessment - Dransfield at [45] and [82], Parker at [27].
12.6. Sixth, while the starting point is to consider the value or public interest in the request (Dransfield CA at [68]), the public interest or value (even of a private interest) in the requested information is not a trump card, but must be considered as part of a balancing exercise with the burden placed on a public authority - Cabinet Office v Information Commissioner and Ashton [2018] UKUT 208 (AAC) at [27], Parker at [45].
12.7. Seventh, a request can have value or serious purpose even if it only serves a private interest rather than a public one. A request should therefore not be dismissed as vexatious purely for the absence of public interest, without considering the other factors - Soh v Information Commissioner and Imperial College London [2016] UKUT 249 (AAC) at [80] - [81] ("Soh")
12.8. Eighth, the fact that there was once a genuine dispute or public interest, does not mean that this public interest cannot be diminished or extinguished through multiple requests - this can be "vexatiousness by drift"– Oxford Phoenix Innovation Limited v Information Commissioner and MHPRA [2018] UKUT 192 (AAC)("Oxford Phoenix") at [87].
12.10. Tenth, a request can be vexatious within the scope of s.14 FOIA because of, in whole or in part, the costs of complying with a request - Dransfield CA at [86]. The costs of redacting information for relevant exemptions can be taken into account when assessing this under s.14 FOIA, in contrast to s.12 FOIA - Innes v Information Commission and Buckinghamshire County Council [2016] UKUT 520 (AAC) at [54].
12.11. Eleventh, it is permissible when considering the burden on a public authority to assess the context and history of the particular request, having regard to the previous course of dealings between the individual requester and the public authority. The breadth, pattern and duration of previous requests may be a telling factor - Dransfield at [29]. A single well-focussed request is less likely to run the risk of being found to be vexatious - Parker at [25].
12.12. Twelfth, the period at which vexatiousness should be judged is the time when a response is due to the request under FOIA - Soh at [101]. However, that does not necessarily preclude subsequent events from being taken into account either (i) to the extent that they shine a light on the state of affairs at the time the response was due - Lee v Information Commissioner and King's College Cambridge (EA/2012/0015) at [80] or (ii) when considering, what steps, if any, need to be taken by a public authority under s.50(4) FOIA if the appeal is allowed - Stürmer v Information Commissioner and North East Derbyshire District Council [2015] UKUT 568 (AAC) at [91] - [95].
13. These general propositions must be applied to the specific facts before a Tribunal considering the application of s.14 FOIA; not all will be applicable in each case.
Evidence and Submissions
14. We have considered an open bundle comprising 1431 pages. There is also a closed bundle. We have had very limited recourse to the closed bundle as we did not consider its contents were needed to determine this appeal. No closed hearing was required at the hearing of this appeal. We were satisfied that as a result of previous orders of the Tribunal, the contents of the closed bundle had been properly gisted by DFE in accordance with the principles set out in Browning v Information Commissioner and the Department for Business Innovation and Skills [2014] EWCA Civ 1050 and Barrett v Information Commissioner and Financial Ombudsman Service [2024] UKUT 107 (AAC).
15. The materials contained in the open bundle are voluminous and diffuse. We have considered all of the material in the bundle, a substantial amount of which is either repetitive or concerns the minutiae of this long-running dispute between the Appellant and the DFE. We do not refer to all or indeed most of it because it is not necessary or proportionate to do so in giving our reasons for rejecting the appeal.
16. There are no witness statements within the bundle. Accordingly, no witness was sworn at the hearing, although both parties and in particular the Appellant made detailed submissions on the extensive documentary evidence in the bundle.
17. It is necessary to set out, briefly, the factual background to the Request and relations between the parties. This is because the background to the Request concerns a dispute between the Appellant and DFE which has been continuing for over 17 years. In light of the length and nature of the dispute it is neither proportionate nor necessary to set out every aspect of that dispute. This background is taken from the documentation in the hearing bundle.
18. In the 2000s, the Appellant was employed by Invest NI. Invest NI is one of the DFE's Non-Departmental Public Bodies, but at the time Invest NI fell under the auspices of the Department of Enterprise, Trade and Industry ("DETI"). DETI is a predecessor department of DFE. While employed by Invest NI, the Appellant had been seconded to a company called CAM Benchmarking Limited ("CAM"). The Appellant was the CEO or Managing Director of CAM.
19. CAM had been largely funded by public monies (including European Union monies), and had been a project initiated in 2002 by the Northern Ireland Economic Research Council for the provision of benchmarking services. In 2004, Invest NI formally ceased using CAM's benchmarking services. In October 2004, Invest NI commissioned an evaluation of CAM for the period October 2002 to October 2004. Following this, Invest NI decided that it would no longer provide funding to CAM after 31 March 2005. The Board of CAM decided that it would close on 31 March 2005.
20. In April 2005, Invest NI commissioned KPMG to undertake an inspection of CAM. As part of this, a former employee of CAM raised concerns that signatures had been falsified on some of CAM's accounting documents. This was raised as a serious question in KPMG's report. The then Finance Director of Invest NI reported the matter to DETI and the Northern Ireland Audit Office was advised of this issue in June 2005. KPMG were instructed to undertake a full forensic audit of CAM's accounts. This was delivered in January 2006 and then passed to the PSNI. They advised Invest NI on 23 September 2008 that the Public Prosecution Service had determined that it was unlikely to secure a criminal prosecution.
21. As part of the above chronology, in June 2005, the Appellant was suspended as a precautionary measure. Invest NI then initiated disciplinary action and following that disciplinary action, the Appellant was dismissed in November 2007. A second employee was reprimanded, demoted, and retired in October 2006.
22. The Appellant subsequently appealed his dismissal. This was rejected by Invest NI in January 2008. The Appellant subsequently lodged complaints with the Industrial Tribunal alleging unfair dismissal, disability discrimination, and victimisation after whistle-blowing. After a lengthy hearing, all of the Appellant's claims were dismissed in a decision of the Industrial Tribunal issued in November 2009. On 30 November 2009, the Appellant applied for a review of the Tribunal's decision, but after several postponed hearings, his application for a review was withdrawn in April 2010. Invest NI applied for, and was awarded, £10,000 in costs against the Appellant in July 2010.
23. CAM was wound up by the High Court in December 2008 upon the petition of Invest NI, a creditor in the company. The effect of this winding up order meant that the Official Receiver based in the Insolvency Service was appointed as liquidator. The Official Receiver has a statutory duty in all compulsory liquidations to investigate the reasons for the failure of the company, realising the assets, make a distribution to creditors, if appropriate, and refer any matters of unfit conduct on the part of directors to the Insolvency Service's Directors Disqualification Unit. The Appellant applied to the High Court to rescind CAM's winding up order, but this was rejected by the High Court. The winding up of CAM was completed on 16 June 2015 and CAM was dissolved in September 2015.
24. It is apparent therefore from this summary that certainly between at least 2005 and 2010 there were a series of very adversarial disputes between the parties. Matters have not concluded there, however. Rather, there has been significant further engagement by the Appellant with the DFE (or its predecessor DETI) including:
24.1. Since 2006, the Appellant has, in the words of DFE, been a "regular and prolific correspondent" with the DFE. This includes requests both (i) for his personal data under the relevant data protection legislation in force at the time and (ii) under FOIA.
24.2. In May 2010, the Appellant made a request of DETI under FOIA in which he asked DETI to provide him with communications between and from three named parties referring to the Appellant and/or CAM. In a Decision Notice dated 20 December 2011, the Commissioner upheld DETI's reliance on s.14 FOIA in respect of this request (Reference FS50317682).
24.3. In May 2016, the Appellant made a request under FOIA concerning the Judge who had presided over the Industrial Tribunal which rejected the Appellant's employment claim. This was answered by the DFE.
24.4. In May 2018, the Appellant made a further request under FOIA seeking information concerning the allocation of CAM's assets to registered creditors. After initial correspondence, the DFE responded in June 2018 stating that the request was vexatious under s.14 FOIA. The Commissioner rejected the DFE's reliance on s.14 FOIA in a Decision Notice dated 15 July 2019 (Reference FS50766422).
24.5. In March 2020, the Appellant contacted the DFE's then Permanent Secretary making a number of allegations. This correspondence was passed within the DFE to the Director of Corporate Governance Division to assess the allegations and determine if it needed to be treated as a whistleblowing case. Specifically, the Division was tasked to consider whether there was anything in the Appellant's correspondence which either (a) had not been previously addressed or (b) presented new evidence on previously closed allegations. This was not a decision to re-open issues which had been closed but rather an assessment to determine if there were any issues which had not already been appropriately dealt with.
24.6. This correspondence of 22 March 2020 was followed by a further 20 emails, totalling several hundred pages which were submitted by the Appellant between 25 March and 27 May 2020.
24.7. The result of this analysis of the correspondence was that the Appellant was advised on 24 June 2020 by the DFE's Director of Corporate Governance Division that he had concluded that all of the Appellant's complaints had been dealt with and closed and referred him to a letter from the previous Permanent Secretary dated 31 March 2017 in which the Appellant had been advised that the DFE did not intend to communicate with him about any of these matters.
24.8. On 6 July 2020, immediately after this response, the Appellant submitted a 10 page email. It requested very substantially similar information to that which was subsequently re-requested on 28 March 2021 and which is the subject of the Request and this appeal. This July 2020 request was refused by DFE on 21 August 2020, relying on s.14 FOIA; no internal review was requested by the Appellant.
24.9. The current request was issued in March 2021. This was dealt with under both the GDPR and FOIA.
24.10. On 7 November 2021, the Appellant made a complaint against the Permanent Secretary of the DFE and its Director of Corporate Governance Division claiming that they were aware of gross misconduct by others and had not acted appropriately in light of this alleged knowledge.
24.11. Even though the Appellant had been advised on 23 November 2021 that the DFE would not enter into further correspondence on these matters, the Appellant submitted a further complaint about the Permanent Secretary and the Director of Corporate Governance Division again on 23 November 2021 and on 9 December 2021. These complaints were taken forward under the final stage of the DFE's Complaints Procedure and a response was issued on 27 January 2022. The response advised the Appellant to refer to the Northern Ireland Public Services Ombudsman if he was still dissatisfied. The Appellant was told that the material which the Appellant had submitted in March to May 2020 had been carefully considered and that no new information had been identified and accordingly no further investigation was required. His complaints about the Permanent Secretary and the Director of Corporate Governance Division were therefore not upheld.
25. At the hearing of this appeal, the Appellant impressed upon the Panel a number of aspects of his appeal which we summarise as follows:
25.1. First that responding to the Request itself was not burdensome; the DFE itself had confirmed in correspondence that responding to the Request itself was not burdensome.
25.2. Second, that the Appellant had subsequently tried to limit the Request to make it more confined, and that he had offered an undertaking not to make further requests or engage in further correspondence with the DFE. He emphasised that the analysis of the allegations which he made in March to May 2020 was what mattered most and was all that he sought.
25.3. Third, that he was making multiple allegations of very serious wrongdoing by public officials which he considered were properly evidenced and which there was a strong public interest in addressing.
25.4. Fourth, that his allegations had not actually been considered in his employment claim or by the High Court in the liquidation proceedings concerning CAM. He was always told by DFE that they had been addressed and closed which he did not accept.
25.5. Fifth, that his pursuit of these matters was reasonable given the damage that he had suffered as a result of what he perceived to be Invest NI's retaliation against him as a whistleblower.
26. Counsel for the DFE emphasised that the test to be applied when considering whether a request was vexatious was a holistic one which focused on proportionality. He explained that the DFE's position on burden was not limited to the Request but needed to be assessed in context and the continuing burden which would result from providing the Appellant further information on these issues, including under FOIA. Dr Sharpe KC also argued that where there was a strong public interest element in the dispute, that might tip the scales of proportionality in favour of an applicant, but that where the opposite was the case, the proportionality scales tipped the other way. This was a dispute which may once have had an element of public interest but in the DFE's contention had now become a purely private dispute being pursued by the Appellant. In all the circumstances, it was appropriate for the DFE to conclude that the Request was vexatious within the meaning of s.14 FOIA.
Discussion and Conclusions
27. Having considered and applied the applicable legal principles summarised at paragraphs 10 to 12 above to the facts of this case, the Tribunal unanimously concluded that (i) the Commissioner was correct to find that s.14 FOIA applied to the Request and (ii) the grounds of appeal did not disclose any error of law on the part of the Commissioner. The Tribunal reached this conclusion having considered all the circumstances of the case and taking a holistic account of the issues.
28. The "starting point" is the value or public interest in the request. We acknowledge the Appellant's firmly held views of the public interest in the allegations he has made against public officials. We also acknowledge that he says that these issues have not been considered by the courts. But even if this were the case, this does not address two central issues. First, that DFE says it has considered the issues already and decided not to take any action. The Appellant may not agree but that is DFE's position. Second (and more fundamentally) these issues are now quite historic issues being pursued entirely by the Appellant.
29. Indeed, one key aspect of the Request which the Appellant particularly emphasised concerns a specific conflict of interest which he alleges concerning the Judge who determined his employment case. This illustrates and indeed reinforces the lack of wider public interest in the Request when judged in context. Ultimately these issues primarily concern the Appellant himself, his role working for CAM and the subsequent legal proceedings which resulted. CAM had been dissolved for approximately 6 years by the time of the Request. The Appellant has pursued these issues with vigour but that vigour does not add to the value of the underlying information. Indeed, in some respects the Request is actually a "meta-request" focusing on the DFE's handling of his subsequent allegations rather than the underlying information itself. This further diminishes the value of the information sought in context.
30. We accept and agree with Dr Sharpe KC's submission that if there had originally been a broader public interest in the underlying issues, the passage of time and the manner in which they have been pursued by the Appellant substantially diminishes the value of the underlying information. Indeed, in many respects this case is a clear example of "vexatiousness by drift" as described by the Upper Tribunal in Oxford Phoenix (see paragraph 12.8 above).
31. We also add that the DFE has made it clear in this appeal that it concluded that there was no new information which justified reopening the matters which were previously closed. Therefore, as DFE has emphasised, its review in 2020 was not a full de novo consideration by it of the underlying allegations but rather involved consideration of whether there was anything new in the Appellant's complaint. The DFE concluded that there was not.
32. Accordingly, we find that the Request concerns issues which were, in 2021, a largely private dispute between the Appellant and the DFE with very limited broader public value. That is not of itself determinative, but an important factor which has to be considered with other factors as part of a holistic assessment.
33. Next, we address the issue of burden. In this regard, we accept the Appellant's submission that DFE was not contending that responding to the Request in isolation would be burdensome. That is clear from the DFE's letter to the Appellant dated 11 June 2021 which stated this in terms. However that is not the end of the matter because that was not the basis on which DFE contended that responding to the request would be burdensome.
34. Rather, DFE's case was that it was entitled to rely on the previous course of conduct of the Appellant and his likely future course of conduct in support of its case on burden. We accept that following Dransfield that it is permissible to look beyond the burden of the Request specifically, subject to focusing on the position as at the time the Request was made and only relying on subsequent conduct insofar as it shines a light on circumstances when the Request was made. We also consider that following Dransfield burden should be assessed holistically and need not be confined to the use of FOIA itself.
35. Accordingly, we accept and agree with DFE's submission that responding to the Request would, in context, create (and indeed be part of) a very substantial burden for DFE. This is because we were entirely satisfied from the context of this dispute that it would not conclude with the Request. Rather we find that the Request is part of a cycle of requests and responses with which the Appellant would never be satisfied. That in short, has been the history of this matter since 2005, albeit with various peaks and troughs throughout the chronology. The Appellant is firmly of the view that he has been seriously wronged, that he has evidence of serious wrongdoing and that it is vital for him to continue to address these. He asserts this in terms and says that is reasonable given what he has suffered to pursue this matter.
36. This dispute has been going on for almost seventeen years at the time of the Request and almost 20 years by the hearing of the appeal. There is no evidence that the passage of time has diminished the Appellant's enthusiasm for pursuing his allegations. Indeed, we observed that he repeated a number of them at the hearing. We have no doubt that responding to the Request would lead to further substantial correspondence and requests from the Appellant. It would not be an end to the matter but present a further opportunity to challenge and argue the issues which has been the history of this matter to date.
37. The Appellant attempted to refute any suggestion of further burden on DFE by relying on the "undertaking" which he was willing to offer. This was offered in Appendix 5 to the Appellant's response to an earlier strike out application which the Appellant had made in this appeal. We were not satisfied that this was an answer to the issue of further burden for three reasons:
37.1. First, the issue of vexatiousness must be judged at the time of the Request and response from the public authority. This undertaking was offered much later in time.
37.2. Second, in any event, the undertaking was in substance heavily qualified. It was dependent on the Tribunal allowing his appeal, and the Appellant being provided with "a full copy of the appraisal, unabridged and un-redacted". In the event that the DFE sought in whole or in part to rely on other exemptions in response to the Request, it was clear that the Appellant would not consider that the undertaking was engaged.
37.3. Third, there is a further qualification in that the Appellant believed that the DFE would have "answer[ed] the questions that I have posed to it". As set out above, DFE has made clear that it has not conducted a de novo consideration of the Appellant's allegations. Therefore, in the event that Appellant did not consider that DFE had in fact answered the questions, it is apparent that the Appellant would consider that the undertaking would not bite.
38. In all the circumstances, the Tribunal did not therefore have confidence therefore that the nature of the undertaking offered after the event would actually lead to an end to the dispute, even if it were relevant to the assessment as at the time of the Request.
39. Accordingly, as in Dransfield itself, the breadth, pattern and duration of previous requests and engagement by the Appellant with the DFE is a telling factor to be considered in assessing the proportionality of the Request.
40. In respect of the grounds of appeal which have not dealt with previously, we do not consider that these provide any material basis to disturb the Commissioner's conclusion that s.14 FOIA was engaged. In this regard:
40.1. We do not consider that previous criticism of the DFE's record keeping purportedly to avoid its obligations under FOIA in a different context is a significant relevant factor in this appeal. It is not in dispute that the information is recorded.
40.2. We have considered this appeal on the facts relating to this Request judged in its proper context. We do not consider that the Commissioner went further, when having regard to previous decision notices in respect of other requests made by the Appellant of DFE or DETI, than indicating that at least one of the decision notices anticipated that the Appellant would continue to pursue these issues, which in fact has been borne out by what has taken place. It was entitled to take this into account, as part of the holistic assessment which Dransfield required.
40.3. We do not consider that any reliance placed by the Commissioner on quotes from the Appellant led the Commissioner into material error in relation to his conclusion to uphold DFE's reliance on s.14 FOIA.
41. Accordingly, in all the circumstances of the case, and in particular having regard to the lack of public value in the Request when balanced with the burden which has been and will be placed on the DFE in responding to the Request, we have concluded that the Commissioner was correct to decide that the Request was vexatious within the meaning of s.14 FOIA.
42. In addition, if it were necessary in support of this conclusion, the Tribunal's view is further reinforced by the Appellant's approach to making wide-ranging allegations of dishonesty and indeed criminality against a number of public officials. The allegations he has made include allegations which would amount, amongst other things, to perjury and misconduct in public office. Even during the hearing, the Appellant was willing to accuse individuals of dishonesty when he disagreed with them, apparently not able to consider that different people might have legitimately different views without being dishonest. Therefore, and while this point was not taken by the DFE, we do consider that in context, the Appellant's pursuit of these exceptionally serious allegations in the manner in which he has made them would be capable of causing considerable distress to the individuals concerned which would be a further factor which the Tribunal can and should take into account following Dransfield. The Appellant's conduct in relation to the complaint which gave rise to the Request is a case in point. He asked for his allegations to be considered by the DFE, and when he was not satisfied by the response, he then made a complaint about the individuals concerned who had been tasked with looking at the matter for him. While the Appellant's conduct of the case may use moderate language, that does not undermine his clear willingness to make repeated and multiple allegations of dishonesty or bad faith. This approach therefore further reinforces the Tribunal's view that the Request was vexatious which it had already reached for the reasons given above.
43. Accordingly, we have concluded that there was no error of law in the Decision Notice and the Commissioner was correct to conclude that the Request was vexatious within the scope of s.14 FOIA. We unanimously dismiss the appeal.
Signed: Judge Scherbel-Ball Dated 18 June 2025