Decision Notice 082/2025: Request for specified email and minutes

Authority: North Ayrshire Council
Case Ref: 202301318 
 

Summary

The Applicant asked the Authority for copies of a specific email and associated meeting minutes. The Authority refused to comply as it considered the request to be both repeated and vexatious. The Commissioner investigated and found that the Authority was not entitled to refuse to comply with the request on the basis that it was repeated or vexatious.  He required the Authority to issue a revised review outcome.

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 14(1) and (2) (Vexatious or repeated requests); 15 (Duty to provide advice and assistance); 47(1) and (2) (Application for decision by Commissioner)

Background

1. On 4 August 2023, the Applicant made a request for information to the Authority.  He asked for a specific email sent to the chair of the Authority’s Community Wealth Building (CWB) expert panel and copies of the minutes from the expert panel regarding the issue discussed in the requested email.
2. The Authority responded on 4 September 2023.  It informed the Applicant that it was not obliged to comply with the request since it considered the request to be both vexatious and repeated.
3. On 14 September 2023, the Applicant wrote to the Authority requesting a review of its decision. The Applicant stated that he was dissatisfied with the decision because he did not agree that his request was vexatious or repeated.
4. The Authority notified the Applicant of the outcome of its review on 23 October 2023, which fully upheld its original decision without modification.
5. On 24 October 2023, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA.  He stated that he was dissatisfied with the outcome of the Authority’s review for the same reasons as in his requirement for review. 

Investigation

6. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
7. On 9 November 2023, and in line with section 49(3)(a) of FOISA, the Commissioner gave the Authority notice in writing of the application and invited its comments.  The Authority provided its comments.
8. The case was subsequently allocated to an investigating officer.

Commissioner’s analysis and findings

9. The Commissioner has considered all of the submissions made to him by the Applicant and the Authority. 

Section 14(2) of FOISA – Repeated requests

10. Under section 14(2) of FOISA, where an authority has complied with an information request, it is not obliged to comply with a subsequent request from the same person which is identical or substantially similar, unless there has been a reasonable period of time between the making of the request complied with and the making of the subsequent request.
11. For section 14(2) to apply, therefore, the following need to be considered: 

    1. whether the Applicant’s previous request was identical or substantially similar to the request under consideration here; 

    2. whether the Authority complied with the previous request and, if so 

    3. whether there was a reasonable period of time between the submission of the previous request and the submission of the subsequent request.  As the Commissioner’s guidance on section 14(2)[1] notes, when considering whether a reasonable period of time has elapsed, it will be useful to consider whether the information has changed and whether the circumstances have changed.

12. The Authority highlighted to the Commissioner that the Applicant had made a number of requests for similar information, consisting of recurring requests for minutes of meetings relating to the CWB.
13. Although there are necessarily similarities between these requests, the Commissioner considers they are different insofar as each request appears to cover distinct minutes of distinct meetings held on different dates.  In other words, they requested different information.  The Authority has also not highlighted any specific previous request that it considered to be identical or substantially similar to the request in this case.
14. The Commissioner is therefore not satisfied the request in this case is a repeated request, as it is not identical or substantially similar to any of the previous requests.  Consequently, he cannot find the Authority was entitled to rely on section 14(2) of FOISA to refuse to comply with the Applicant’s request in this case.
15. If a public authority is receiving repeated requests for particular information, it should consider pro-actively publishing the information through its publication scheme.  The Commissioner notes that the Authority has started pro-actively publishing the minutes of some meetings.  He welcomes this step.
16. The Commissioner will now go on to consider whether the Authority was entitled to rely on section 14(1) of FOISA to refuse to comply with the Applicant’s request in this case.

Section 14(1) – Vexatious requests 

17. Under section 14(1) of FOISA, a Scottish public authority is not obliged to comply with a request for information if the request is vexatious.
18. The Commissioner’s guidance on the application of section 14(1) of FOISA[2] states: “There is no definition of "vexatious" in FOISA.  The Scottish Parliament considered that the term "vexatious" was well-established in law and chose to give the Commissioner latitude to interpret the term in that context, so that the interpretation might evolve over time in light of experience and precedent.”
19. In the Commissioner's view, there is no single formula or definitive set of criteria that allow a formulaic approach to be taken to determining whether a request is vexatious.  Each request must be considered on the merits of the case, supported by evidence, clear evaluation and reasoning.  Although this is not an exhaustive list, the following factors will be relevant to a finding that a request (which may be the latest in a series of requests or other related correspondence) is vexatious: 

    1. it would impose a significant burden on the public authority

    2. it does not have a serious purpose or value 

    3. it is designed to cause disruption or annoyance to the public authority 

    4. it has the effect of harassing the public authority; or 

    5. it would otherwise, in the opinion of a reasonable person, be considered to be manifestly unreasonable or disproportionate. 

20. Depending on the circumstances, other factors may be relevant, provided that the authority can support them with evidence.  The Commissioner recognises that each case must be considered on its own merits, taking all the circumstances into account.
21. While the Commissioner's view is that "vexatious" must be applied to the request and not the requester, he acknowledges that the applicant's identity, and the history of their dealings with the authority, may be relevant in considering the nature and effect of a request and its surrounding circumstances.  It may be reasonable, for example, for an authority to conclude that a request represents a continuation of a pattern of behaviour it has deemed vexatious in another context.
22. The guidance also says that requesters must not be denied the opportunity to make a genuine information request.  Requests may be inconvenient and meeting them may at times stretch an authority’s resources, but these factors are not, on their own, sufficient grounds for an authority to deem a request vexatious.

Submissions from the Applicant

23. The Applicant submitted that his requests were specific, reasonable and proportionate.  He explained that they were based on the information referenced at CWB meetings, so he would expect it to be readily accessible in documentation surrounding these meetings.
24. The Applicant denied that the effect of his requests was to harass the Authority as he considered his requests were courteous and specific.
25. The Applicant argued that making information pertaining to CWB accessible would enhance scrutiny of decision-making processes and thereby improve accountability and participation by individuals and third sector organisations.  In his view, the information covered by his requests went beyond a mere interest of an individual – it was in the interest of and served the interests of the public in North Ayrshire.  He submitted that he focus of this interest was the economic development of the North Ayrshire economy, which would enhance the financial and social opportunities of people in North Ayrshire.
26. In this case, the Applicant made clear his concern was with the Authority’s position on whether certain minutes would be published.  He explained he had consistently sought to ensure the disclosure of these minutes, but he had received inconsistent information from the Authority as to whether the minutes would be published.
27. During the investigation, the Applicant was asked to provide copies of the correspondence relating to this alleged inconsistency.  He declined to provide these documents.

Submissions from the Authority

28. The Authority provided detailed submissions explaining why it considered the Applicant’s request vexatious in terms of section 14(1) of FOISA.
29. The Commissioner is unable to reproduce or summarise those submissions fully, within this decision notice, without breaching the obligation of confidentiality in section 45 of FOISA.  However, he will reproduce what he considers to be the key elements of the Authority’s submissions (to the extent that he can without breaching section 45).
30. The Authority stated that it considered the Applicant’s request vexatious for the following reasons:

• the request, when considered in relation to his previous requests, imposed a serious burden upon the Authority

• the request, when considered in relation to his previous requests, had the effect of harassing the Authority

• there was little or no genuine public interest in the information requested

• the request was part of a campaign against the Authority.

Significant burden

31. The Authority submitted that the Applicant’s requests imposed a burden on both its financial and human resources as well as on the broader activity of its Economic Policy Team.  It provided details of these requests to the Commissioner (13 requests since June 2021, some of which contained multiple nested questions.)
32. The Authority explained that the Applicant’s requests required significant staff time to address, including one specific case which required the input of ten of its officers.
33. The Authority stated that it had needed to divert staff from other work, including the refresh of the CWB strategy, to deal with the requests.  This contributed to delays in the refresh of this strategy.
34. The Authority also noted that it is not unusual for the Applicant to use published information to create detailed and complex requests that require further significant time and effort to address.

Effect of harassing the Authority

35. The Authority explained that it believed some elements of the Applicant’s communication amounted to harassment (e.g. continual emails seeking a response and reminding it of deadlines).
36. The Authority also suggested that the Applicant would try to contact multiple staff members in the apparent hope of receiving a different response, including unnecessarily sending emails to the Chief Executive.
37. The Authority also explained that the volume of “critical” requests coming through, and the nature of the wording (which often called into question its actions in relation to CWB) had resulted in staff feeling harassed as a result of dealing with these requests and associated criticism.

Serious purpose or value of the request

38. The Authority indicated that it did not believe there was a legitimate public interest in the majority of the information covered by the Applicant’s requests.  It explained that the majority of the information requested related to the minutiae of operating a CWB approach to economic development.  It considered there was no genuine benefit to such information being in the public domain and that it was being requested as part of a campaign of criticism against the Authority.
39. The Authority explained that it published information relating to CWB internal and regional work as and when required, in line with the requirement to be transparent and open, and with the legal requirements imposed on it.  It highlighted several examples of such information, including Cabinet and Committee papers, information relating to the reporting for the Ayrshire Growth Deal and the publication of minutes of the CWB Commission and CWB Lead Officer Working Group.

Pursuing a campaign

40. The Authority argued that the Applicant was participating in a campaign to discredit its approach to CWB.  It provided submissions explaining why.
41. The Authority noted that, while it considered itself a pioneer in CWB and had received national recognition for its approach, it had not received any other FOI requests for information regarding the CWB strategy.  However, it had received “repeated” requests from the Applicant, which often asked for the same information in different ways.

The Commissioner’s view

42. The Commissioner has carefully considered the submissions made by the Applicant and the Authority.  In this case, he is limited to considering whether the Authority has provided sufficient evidence and submissions to support its claim that the application of section 14(1) of FOISA was appropriate in the circumstances. 

Significant burden

43. Having considered the volume of the Applicant’s requests, the level of detail required to respond to some of them and their narrow focus (which entails particular pressure upon the Authority’s CWB team), the Commissioner recognises that the pattern of these requests would be liable to impose a burden upon the Authority.
44. However, the request in question asked for two specific documents.  The Commissioner does not consider that complying with this request would, in itself, impose a significant burden on the Authority.
45. While the Commissioner accepts that this request is part of a pattern that has imposed a burden upon the Authority, he considers he can give this factor only limited weight in this case.
46. As noted above, many of the Applicant’s previous requests were for minutes of meetings. Proactive publication of these minutes (which, as stated above, the Authority has started doing for some meetings), where appropriate, would have removed the need for at least some of these requests.

Effect of harassing the Authority

47. Having carefully considered the submissions received from the Authority, the Commissioner agrees that the Applicant’s approach to following up his requests could have the effect of harassing the Authority’s staff.
48. In his own Unacceptable Actions Policy[3], the Commissioner is clear that he does not view behaviour as unacceptable simply because an individual is forceful or determined.  In fact, he accepts that persistence can be a positive advantage when pursuing an appeal relating to an information request or a complaint.
49. The Commissioner acknowledges that drawing the line between a legitimately determined approach to obtaining information and behaviour that has the effect of harassing a public authority can be difficult.  In cases where a public authority encounters such challenging behaviour, he would generally expect them to engage with the requester to explain the effect of their behaviour and give them an opportunity to modify that behaviour.
50. The Commissioner notes that the Authority has its own Managing Unacceptable Contact Policy[4].  He therefore considers that the Authority has other tools at its disposal to deal with persistent behaviour, other than refusing to comply with an information request under section 14(1) of FOISA (although such a course of action may be appropriate, depending on the circumstances and provided these can be evidenced).
51. The Commissioner is aware of only limited evidence that the Authority has attempted to advise or warn the Applicant of where his approach may have crossed the line from being simply forceful or determined into conduct having the effect of harassing the Authority.
52. In all the circumstances of this case, the Commissioner considers that he can only give limited weight to the Authority’s view that the Applicant’s history of dealings with it has had the effect of harassing the Authority.

Serious purpose or value of the request

53. Although the Commissioner notes the comments he has received regarding the public interest in obtaining information relating to CWB, he understands that this request specifically relates to a particular purported contradiction between comments made by the Authority.
54. As rehearsed above, the Applicant refused to provide copies of the documents in which this purported contradiction arises. However, the Commissioner understands that that the purported contradiction is a change of position by the Authority regarding whether certain documents should be published.
55. Even if an authority thinks that a request lacks serious purpose or value, the requester might, from a subjective and reasonable point of view, have a genuine desire and/or need to obtain the information. The Applicant clearly considers that the information requested would shed light on the contradiction that he believes exists.
56. Regardless of whether such a contradiction exists or whether the Authority simply held different positions at different points in time, the Commissioner does not consider that the request in question was so lacking in serious purpose that it was vexatious. 

Pursuing a campaign

57. The Commissioner notes that the Authority is concerned that the Applicant is participating in a campaign to discredit its approach to CWB.
58. In Decision 142/2011, the Commissioner found that the fact that a requester may be opposed to work that a public authority is carrying out, about which the requester was seeking to find out more, did not of itself demonstrate that the request was designed to cause disruption or annoyance to the Authority.
59. In the Commissioner’s view, similar considerations apply in this case.  Even if the Applicant was seeking to discredit the Authority’s approach to CWB, he remains entitled to request information from the Authority on this topic.
60. The right to request information is an important legal right.  It should not be abused, but the provisions within section 14(1) of FOISA must still be used carefully, which means authorities must always consider requests on their own merits and consider all the relevant circumstances, in order to reach a balanced conclusion as to whether a request is vexatious.

Conclusion

61. Having carefully considered the Authority’s submissions, the Commissioner considers there are two factors that suggest the request in this case may be vexatious:

• it is part of a pattern of cumulatively burdensome requests 

• these requests have the effect of harassing the Authority.

62. However, as rehearsed above, the Commissioner has determined that relatively little weight can be attributed to these factors in this particular case.  He considers that the request in this case appears relatively straightforward to respond to and that many of the Applicant’s previous requests could have been avoided had the Authority pro-actively published the information requested.
63. The Commissioner also considers it would have been appropriate for the Authority to have engaged with the Applicant to advise him of the effect his behaviour was having.  Had it done so, and had the Applicant’s behaviour persisted, the Commissioner would have given greater weight to this element.
64. While the Commissioner accepts that dealing with the Applicant’s requests may be inconvenient and that some of his more complex requests may have stretched the Authority’s resources, he is satisfied that there was a reasonable foundation to the request in this case.
65. In all the circumstances, the Commissioner concludes, on balance, that the Authority was not entitled to refuse to comply with the request in this case on the basis that it was vexatious.
66. As the Commissioner has found that the Authority was not entitled to refuse to comply with the request on the grounds that it was vexatious or repeated, he requires the Authority to carry out a fresh review in respect of the Applicant's request, and to provide him with a revised review outcome, otherwise than in terms of section 14 of FOISA.
67. The Commissioner would like to make clear that his finding in this decision does not mean that any future request from the Applicant to the Authority would not be vexatious.  The right to request information is an important legal right, but it should not be abused.  Equally, the provisions within section 14(1) of FOISA must be used carefully, which means authorities must always consider requests on their own merits and consider all the relevant circumstances, in order to reach a balanced conclusion as to whether a request is vexatious.

Decision 

The Commissioner finds that the Authority failed to comply with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to the information request made by the Applicant.  He finds that the Authority was not entitled to refuse to comply with the Applicant's request on the basis that it was vexatious or repeated.  In doing so, it failed to comply with section 1(1) of FOISA.

The Commissioner therefore requires the Authority to carry out a fresh review, in terms of section 21 of FOISA, and to provide the Applicant with a revised review outcome, respond otherwise than in terms of section 14, by Monday 19 May 2025. 

Appeal

Should either the Applicant or the Authority wish to appeal against this decision, they have the right to appeal to the Court of Session on a point of law only.  Any such appeal must be made within 42 days after the date of intimation of this decision.

Enforcement  

If the Authority fails to comply with this decision, the Commissioner has the right to certify to the Court of Session that the Authority has failed to comply.  The Court has the right to inquire into the matter and may deal with the Authority as if it had committed a contempt of court.

Euan McCulloch
Head of Enforcement 

03 April 2025