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Decision 134/2026

Decision 134/2026:  Whether requirement for review was vexatious 


Authority: Scottish Further and Higher Education Funding Council 
Case Ref: 202502034
 

Summary

The Applicant asked the Authority for all correspondence and documents relating to complaints and inquiries he submitted to the Authority between June and August 2025.  The Authority responded but declined to conduct a review, as it believed the Applicant’s requirement for review was vexatious.  The Commissioner investigated and found that the Authority was not obliged to conduct a review.  

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 14(1) (Vexatious or repeated requests); 20(1) (Requirement for review of refusal etc.); 21(1), (8) and (9) (Review by Scottish public authority); 47(1) and (2) (Application for decision by Commissioner). 

Background

  1. On 15 September 2025, the Applicant made a request for information to the Authority.  He asked for copies of all correspondence, documents, internal memoranda and communications relating to complaints and inquiries he submitted to the Authority between June and August 2025.
  2. The Authority responded on 9 October 2025.   It disclosed some information to the Applicant and withheld other information under exemptions in FOISA.
  3. Later that day, the Applicant wrote to the Authority requesting a review of its decision. He made several points but confirmed that he was dissatisfied with the Authority’s response to his request. 
  4. On 30 October 2025, the Authority informed the Applicant that it considered his requirement for review to be vexatious and explained why.  It stated that it was therefore not obliged to comply with his requirement for review.
  5. On 9 November 2025, 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 because he disagreed that his requirement for review was vexatious. 

Investigation

  1. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation. 
  2. On 23 December 2025, the Authority was notified in writing that the Applicant had made a valid application.  The case was subsequently allocated to an investigating officer. 
  3. Section 49(3)(a) of FOISA requires the Commissioner to give public authorities an opportunity to provide comments on an application.  The Authority was invited to comment on this application and to answer specific questions related to why it considered the Applicant’s requirement for review to be vexatious. 

Commissioner’s analysis and findings

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

Section 21 of FOISA – Review by Scottish public authority 

  1. Section 21(1) of FOISA states that a Scottish public authority receiving a requirement for review must (unless that requirement is withdrawn or is as mentioned in subsection (8)) comply promptly; and in any event by not later than the twentieth working day after receipt of the requirement.  
  2. Section 21(8)(a) of FOISA states that subsection (1) does not oblige a Scottish public authority to comply with a requirement for review if the requirement is vexatious.
  3. In this case, the Authority informed the Applicant that it considered his requirement for review to be vexatious and that it was therefore not obliged to comply with it. 

Whether requirement for review was vexatious 

  1. FOISA does not define the word "vexatious".  The Commissioner has published guidance on section 14 of FOISA.  Each case must be considered on its own merits, but he has identified several factors he considers relevant in finding that a request is vexatious.  In the Commissioner's view, these factors are equally relevant to the application of section 21(8)(a) of FOISA.  They are that:
  • the request (or requirement for review) would impose a significant burden on the public authority;
  • it does not have a serious purpose of value or value
  • it is designed to cause disruption or annoyance to the public authority
  • it has the effect of harassing the public authority
  • it would otherwise, in the opinion of a reasonable person, be considered to be manifestly unreasonable or disproportionate
  1. This is not an exhaustive list.  Depending on the circumstances and provided the impact on the authority can be supported by evidence, other factors may be relevant.
  2. While "vexatious" must be applied to the request (or, in this case, the requirement for review) and not the requester, the Commissioner acknowledges that the applicant's identity, and the history of their dealings with a public authority, may be relevant in considering whether a request is vexatious.

The Applicant’s submissions 

  1. The Applicant provided detailed submissions as part of his application under various headings. The Commissioner has considered these submissions in full, but he has only summarised what he considers to the key points in so far as they relate to the Applicant’s disagreement that his requirement for review was vexatious.
  2. The Applicant said that the Authority, “acting in collusion or through dishonest discretion”, had refused to provide key documents and internal correspondence directly related to potential misconduct within WCS.  He described this refusal as a “deliberate act of evidence concealment” and “an attempt to protect the reputation of those involved and to suppress a lawful investigation aimed at establishing the truth”. 
  3. The Applicant submitted that FOISA was “not a tool for concealing corruption, but a shield for citizens demanding transparency” and that by “abusing its authority, the [Authority] has turned this shield into a weapon against truth”.
  4. The Applicant said the Authority’s conclusion that his requirement for review was vexatious was a “panicked confession of guilt, camouflaged in legal polish”. Under what he called the “pretext of ’offended sensitivities” of its staff‘, he argued that the Authority had essentially declared it “easier to break the law than to answer under it”. While he recognised that the provisions in FOISA related to vexatiousness were intended to protect authorities from abuse, he said that the Authority had “twisted and perverted” these provisions into “a shield protecting bureaucracy from lawful citizen oversight”.
  5. The Applicant stated that the Authority attempted to “legalize its own unwillingness to respond – its own fear of exposure” by considering his requirement for review vexatious.  He said that such an application of FOISA undermined the very idea of Freedom of Information law and described this as a “cold, calculated act of corrupt self-preservation”, elevated to the status of an “official decision”.”

The Authority’s submissions

  1. By way of background, the Authority explained that it had previously received a formal complaint from the Applicant in relation to the decision of West College Scotland (WCS) that he did not meet the criteria to receive funding from the WCS’ discretionary fund.
  2. The Authority noted that its response letter of 30 October 2025 set out its reasons for finding the Applicant’s requirement for review to be vexatious, namely that it had the effect of harassing the Authority and its staff and would, in the opinion of a reasonable person, be considered to be manifestly unreasonable. In reaching this conclusion, it had regard to the following factors:
  • The nature and content of the requirement for review, which appeared to have been sent in order to pursue his complaint rather than to access information
  • Carrying out a review would have the effect of reopening and prolonging matters which had already been dealt with through the Authority’s complaints procedure
  • The accusatory language and tone used, including unfounded allegations of concealment and criminality as well as warnings of consequences if the Authority did not comply with his demands
  1. During the investigation, the Authority provided further examples in support of its position that the requirement for review had the effect of harassing it. These included threats to “pursue maximum consequences”, including sections of the requirement for review comprising of threats and warnings, and demands to know names of officials.  It also noted that the Applicant had accused the Authority of a “systemic cover-up and negligence”.
  2. The Authority acknowledged that complying with the requirement for review may not impose a significant burden.  However, it maintained that the requirement for view was vexatious because it considered that the motive of the requirement for review was to force it to reconsider the Applicant’s original complaint about alleged wrongdoing at the Authority – despite those concerns having already been fully reviewed through its complaint process. 
  3. In addition, the Authority noted that it was unable to investigate the Applicant’s original student funding grievance as this must be taken forward with WCS and the Scottish Public Services Ombudsman – something it said it had explained to him on multiple occasions. 
  4. While the Authority acknowledged that it is not the identity of the requester which determines whether a request (or a requirement for review) is vexatious under FOISA, it considered that in this instance the requester’s identity was relevant. Referring to the Commissioner’s guidance on vexatious requests and requirement for reviews, it said that:
  • The requirement for review represented the continuation of a pattern of behaviour and tone which it considered concerning
  • The Applicant had an ongoing grievance against the Authority and the wording of his requirement for review was a continuation of a pattern of behaviour which, in the circumstances, made his requirement for review vexatious.
  1. In conclusion, the Authority maintained that the Applicant’s requirement for review was vexatious.

The Commissioner’s view

  1. The Commissioner is required to determine not whether the Applicant’s request for information was vexatious, but whether his requirement for review was vexatious.  In doing so, he has considered all of the submissions made by both the Applicant and the Authority.
  2. Having reviewed the specific wording of the Applicant’s requirement for review and the Authority’s submissions, the Commissioner accepts that the requirement for review had the effect of harassing the Authority and its staff.
  3. The Commissioner would not view behaviour or tone as unacceptable simply because an individual is determined, forceful or persistent.  However, he is satisfied, in the circumstances, that the Applicant’s behaviour and tone went beyond that.  In reaching this conclusion, he has had regard to, for example, the following aspects of the Applicant’s requirement for review:
  • Stating that he would request that the Authority be “fined to the maximum legal extent for deliberate and systematic concealment of documents, cover-up of facts, criminal negligence, and direct obstruction of the Freedom of Information law”
  • Demanding a response within ten working days (as opposed to the twenty working days permitted by section 21(1) of FOISA), with failure to do so triggering “immediate escalation through all legal and oversight channels”
  • Signing it off with “Respectfully (conditionally, but with sarcasm” and giving his title as “Senior Independent Inspector of Common Sense” – a quality he says appears “entirely absent” from the Authority.
  1. In making this finding, the Commissioner would add that he would expect public authorities be able to withstand reasonable criticism from requesters.  He also recognises that, in some instances, requesters who feel strongly about particular matters might express their dissatisfaction with a response to an information request by using intemperate language.
  2. However, whatever the merits of the Applicant’s underlying grievance with the Authority, the Commissioner considers that the manner in which the Applicant has expressed them strayed beyond reasonable criticism and appropriate language to the extent that his requirement for review had the effect of harassing the Authority and its staff.
  3. In all the circumstances of this case, the Commissioner considers it reasonable to conclude that the Applicant's requirement for review was vexatious and that section 21(8)(a) of FOISA applied.  Accordingly, the Authority was not required to conduct a review in terms of section 21(1) of FOISA.

Decision 

The Commissioner finds that the Authority complied with Part 1 of the Freedom of Information (Scotland) Act 2002 in responding to the information request made by the Applicant.

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.

 

 

Euan McCulloch 

Head of Enforcement 


27 May 2026

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