The date for assessing whether a request is vexatious or manifestly unreasonable, in the context of freedom of information and environmental information refusal decisions, is an issue with a surprisingly long tail - particularly given its practical importance to public bodies when faced with information rights requests.
Even though the test of vexatiousness (FOIA) and the test of manifest unreasonableness (EIR) is now accepted to be the same (the ‘two-tests one meaning’ approach), the relevant date, at which the public authority should make its assessment under the two regimes, is not the same.
The issue has practical importance because, of course, the relevant date of assessment provides the principal ‘cut-off’ date as to the matters that the public body is entitled to consider when deciding whether to refuse the request.
In the recent case of Wermter v. Information Commissioner [2026] UKFTT 00677 (GRC) the FTT was confronted with this issue, and the judgment is a useful reminder of the distinctions.
In essence, the issue is whether the public authorities’ assessment of the relevant factors falls to be judged as at the date the initial refusal is made, or the date that the refusal should have been made, or the date of any subsequent internal review of its initial decision.
The appellant (‘W’) made a FOIA request to the London Borough of Camden on 6th June 2024. LBC considered that W’s request was in fact a request for environmental information and so on 27th June 2024 (being the date that an FOIA response would have been due) LBC informed W that it was applying the EIR regime and also extended the deadline for its response to 2nd August 2024 - on the ground of complexity.
On 2nd August 2024, LBC made its assessment and refused W’s request on the basis that it was manifestly unreasonable. Following W’s request for an internal review of the decision, LBC reconsidered its assessment, and finally upheld its initial decision to refuse the request on 3rd October 2024.
W complained to the ICO arguing first that LBC’s treatment of his request as environmental information was wrong, and secondly that the request was neither vexatious nor manifestly unreasonable. W maintained that the request should have been dealt with under the FOIA and that due date for LBC’s assessment and its response was 27th June 2024.
W and LBC had been in dispute about an unrelated matter for more than 12 months before W made his information request in June 2024. The underlying dispute was personal to W and his frustration at the lack of resolution of that matter caused a growing tension between W and LBC. Communications between W and some employees at LBC became fractious and intemperate, which the FTT found were sufficient in scope to likely cause those employees’ distress. Even though W maintained that there was a serious purpose for making the request, W admitted using the information request initially as revenge for LBC’s alleged failure to address the issues in W’s underlying dispute.
After 27th June 2024 (being the date that W argued was the FOIA response date) and 2nd August 2024 (when LBC issued its refusal decision), and to a lesser extent up to 3rd October 2024 (when LBC’s internal review was concluded), W made various threats that he would take action that would result in the imprisonment of LBC officers. The FTT also found that W left offensive voicemail messages and sent vitriolic emails to LBC employees, sometimes several times in the same day.
There was no dispute between the parties that the application of either s.14 FOIA (vexatious) or Reg. 12 EIR (manifestly unreasonable) test – if made out - would result in a different outcome; but because the date of assessment of the refusal under the two regimes was different (being 27th June 2024 under the FOIA or 2nd August 2024 or 3rd October 2024 under the EIR) the weight of the factors that LBC was reasonably entitled to take into account in making its assessment (in particular the weight of evidence relating to W’s conduct) was different.
The FTT noted that the Upper Tribunal had considered the date of assessment issue in the context of the FOIA in Soh [2016] UKUT 0249 (AAC) – albeit obiter; and, subsequently in Montague [2022] UKUT 104 (AAC) (not an issue addressed by the Court of Appeal or the Supreme Court in the same case).
In Montague the UT held that under the FOIA, the correct date of assessment was the date of the initial refusal decision not the date that the public body should have refused and not the date of any subsequent internal review - as Part 1 of the FOIA imposes no requirement on a public body to undertake any such review.
By contrast the FTT acknowledged that the regulatory landscape of the EIR (at reg.11) does impose an additional statutory obligation on a public authority to review its initial decision to refuse a request, should the requester ask for one. In O’Hanlon v. Information Commissioner [2025] UKUT 66 (AAC) the UT held that the impact of the additional obligation in the EIR to undertake an internal review, had the effect of shifting the relevant date of the assessment up to the date of the subsequent internal review if one was made.
The FTT considered the date of assessment issue at paras 113 -to- 125 of its judgment, noting at para 123, that ‘In our view there are good reasons for the same date to apply in both regimes, including that it is legitimate for a public authority (and the Commissioner and the tribunal) to consider a request on an “either/or basis”. However, we are bound by the Upper Tribunal in O’Hanlon which decided that the relevant date under the EIR is the date of the reconsideration decision, which in this case is 3rd October 2024’.
Even so, and perhaps at odds with the O’Hanlon authority, the FTT (adopting a holistic approach and being satisfied that there were no factual matters between 2nd August and 3rd October 2024 which would have led the FTT to reach a different conclusion) determined that the date of assessment in this case was 2nd August 2024 being the date of LBC’s initial refusal.
In effect the FTT rejected the 27th June 2024 (the FOIA due date) in favour of the LBC’s actual initial decision date of 2nd August 2024 – an approach arguably in line with the decision in Montague, but as noted seemingly departing from the approach in O’Hanlon, which if it had been applied would have resulted in the 3rd October 2024 as the assessment date.
The FTT dismissed W’s appeal and upheld the Commissioner’s decision that the request was vexatious.
Wermter is a useful reminder of these intricate issues..
Richard Beaty is a barrister at 4-5 Gray’s Inn Square and acted for the London Borough of Camden on this case.
