Freedom of Information and unreasonable applicants

LG Leader June 2019

In December 2018 the Ombudsman published his determination in respect of an external review pursuant to section 39 of the Freedom of Act 1991 (“the FOI Act”). The external review was a result of the council’s decision to refuse to deal with a freedom of information application. In refusing to deal with the application the council had formed the opinion that the application was part of a pattern of conduct that amounted to an abuse of the right of access and also that the application was made for a purpose other than to obtain access to the information pursuant to section 18(2a) of the FOI Act.

The council’s refusal to deal with the application was supported by:

• the applicant’s repeated requests for access, eight in total, to the same or similar information;
• the work required by the council to process the previous applications was estimated to be in excess of 200 hours by nine employees;
• the council had previously released 432 documents to the applicant totalling 1781 pages; and
• the applicant had also contacted the Council on a number of occasions regarding the property, separate and additional to the FOI applications.

All of these factors were pointed to by the council in reaching its determination that the current application was a pattern of conduct amounting to an abuse of process. The Ombudsman agreed and confirmed the council’s decision.

Where a council considers that an applicant’s repeated request for information amount to a pattern of conduct and are for an improper purpose, a council can use section 18(2a) of the FOI Act to refuse to deal with subsequent applications. This is a useful tool for councils when dealing with unreasonable applicants. However, whether it is appropriate for a council to use section 18(2a) of the FOI Act will depend on the circumstances of each case. A council should, wherever possible, keep a record of the resources, expenses and time taken by the council in assessing FOI applications. For more information please contact us.