When ‘Vexatious’ Goes Too Far: Tribunal Overturns ICO in Freedom of Information Act Case
Posted on in Dispute Resolution
What happens when a routine Freedom of Information Act request is dismissed as vexatious, and the Tribunal decides that the decision maker got it wrong? The 2026 Kennedy ruling (Kennedy & Another v The Information Commissioner & Another [2026] UKFTT) offers a striking example of the courts pushing back against overbroad reliance on s.14(1), reaffirming the need for careful, evidence‑based analysis by both public authorities and the Information Commissioner.
Who is responsible for complying with the Freedom of Information Act regime?
Public authorities, defined in Schedule 1 of the Freedom of Information Act 2000 (“FOIA”), must acknowledge and process FOIA requests and confirm or deny whether they hold the information requested. If there is no exemption in place, it must provide the information and issue a valid refusal notice promptly and within 20 working days. The ICO’s guidance, “Time limits for compliance under the FOIA”, emphasises that “promptly” means “as soon as is reasonably practicable” and the 20 working days limit should be regarded as a long stop date.
What does this case concern?
The dispute originated from concerns raised by Mr and Mrs Kennedy regarding changes to the GCSE curriculum and pupil wellbeing at St Paul’s Catholic College, which is part of the Bosco Catholic Education Trust (the “Trust”). After the Kennedys’ initial complaints were reviewed by the Trust and the Department for Education (DfE), the Kennedys submitted a FOIA request on 22 March 2024 seeking all documents showing the Trust’s internal review/investigation of their complaint and the deliberations, findings, and meeting minutes associated with that review. The Trust refused the request, citing s.14(1) FOIA, which states that a public authority is not obliged to comply with a request if it is “vexatious”. The Trust argued that the request was part of a “sprawling and persistent campaign” that lacked serious value and placed an undue burden on its staff.
What was decided by the Information Commissioner?
The Information Commissioner upheld the Trust’s refusal and issued a Decision Notice (DN) on 27 February 2025. The Information Commissioner agreed that the involvement of the DfE meant the request made to it had “no practical utility”.
Did the Tribunal agree with the Information Commissioner’s decision?
The matter was appealed to the First-tier Tribunal. On appeal, the request made by the Kennedys for the information was determined not to be vexatious. The Tribunal disagreed with the Trust’s argument that the request had “no practical utility”. The Kennedys had a serious purpose in seeking to understand how the Trust handled the outcomes of third-party investigations into pupil welfare. The Tribunal found those conclusions made by the Information Commissioner to be based on factual errors and an over-reliance on the Trust’s review instead of independently analysing the evidence.
Why did the Tribunal reject the Information Commissioner’s finding that the request was vexatious?
The Tribunal concluded that the request was not vexatious and did not constitute a disproportionate and inappropriate use of the FOIA. It was decided that the request for the information was not vexatious under section 14(1) FOIA for the following reasons.
Narrow scope
The specific request was described as “targeted and narrow in its scope” and was not expected to create a material burden for the Trust to answer. This highlights that it will be harder for an organisation to classify a defined and narrow request as “vexatious”.
Accountability
Even though the Department for Education (DfE) had already investigated, the Tribunal ruled that there can still be a strong public interest in disclosing how a public authority processed and acted upon those findings. The Tribunal was critical of both the Trust and the Information Commissioner because the Information Commissioner overstated the workload created by the involvement of the DfE, and the Trust did not provide adequate evidence showing that responding to the request would impose a disproportionate strain on its staff.
What criteria determine if a request is considered vexatious?
The term “vexatious” is not defined in the FOIA. Guidance on what may constitute a vexatious request for information was issued in the Upper Tribunal and Court of Appeal’s judgements in the Dransfield cases. It was emphasised in Information Commissioner v Devon County Council & Dransfield [2012] UKUT using the “Dransfield principles” that there should be an “objective standard” to vexatiousness. Lady Justice Arden commented that vexatiousness involves making a request where there is no reasonable foundation for thinking that the information sought would be of value to the requester, or to the public, and reviewing whether a request is vexatious requires a holistic approach to decide if the request is a disproportionate, manifestly unjustified, inappropriate, or improper use of FOIA. This can be a complex exercise so seeking legal advice by instructing a solicitor to assist with this is advisable. A request is less likely to be vexatious if it has a legitimate public interest, a serious purpose or is “targeted and narrow in its scope”.
What was the Tribunal outcome?
The Tribunal substituted the Commissioner’s Decision Notice with its own. The Trust was ordered to issue a fresh response to the Kennedys within 35 days. The fresh response was required to either:
- Disclose the requested information; or
- If the Trust still wished to withhold it, cite specific legal exemptions as to why they should not (such as for data protection reasons), rather than relying on the blanket “vexatious” label.
What can organisations learn from this decision?
The Tribunal’s decision reinforces that refusing a FOIA request on the basis that it is “vexatious” requires a careful and evidence-based assessment. The Tribunal’s decision shows that s.14(1) FOIA cannot be seen as a convenient shield for public bodies wishing to avoid difficult or embarrassing requests. A public authority must demonstrate that the request represents a “disproportionate, manifestly unjustified, inappropriate or improper use of FOIA”, and it must:
- Consider all the circumstances of the request to reach a balanced conclusion;
- Assess whether the requester has a genuine motivation or if the request is part of a campaign intended to abuse the system;
- Show that the request lacks practical utility or serious purpose and proactively consider if there is a strong public interest;
- Understand the different regimes. The Tribunal made the distinction between FOIA requests and Subject Access Requests (SARs). The Tribunal recorded that several of the items of correspondence related to Subject Access Requests (SARs), separate statutory rights which should not be part of a FOIA request, highlighting the importance of not getting the two mixed up when making a request. Anyone can make a FOIA request for any recorded information, regardless of their identity, motive, or relationship with the authority. The right concerns the transparency of public bodies, not personal information.
Procedural strictness
Public authorities must adhere to statutory timeframes regardless of whether they intend to refuse a request. In this case, the Trust breached section 17(1) by failing to issue a refusal notice within 20 working days.
How Tozers can help
At Tozers, we understand the complexities of Freedom of Information Act requests and the drain they may have on your organisation’s resources. Our team of legal experts is equipped to guide your organisation through the intricacies of compliance, ensuring that you not only meet current legal requirements but also anticipate future challenges.