The First-tier Tribunal has dismissed three appeals brought by campaigner Dr Robert Abrahart against the Department for Education, upholding two findings that his requests were vexatious under section 14(1) of the Freedom of Information Act 2000 and confirming in the third that emails withheld under sections 35 and 42 were exempt, while rejecting the department's attempt to treat requests from co-campaigners as repeated requests under section 14(2).
Judge Saward, sitting with tribunal members Scott and Shaw, heard the three appeals together over two days in May 2026 but issued separate decisions on 25 August: [2026] UKFTT 1220 (GRC), [2026] UKFTT 1221 (GRC)[2026] UKFTT 1221 (GRC) and [2026] UKFTT 1222 (GRC). Dr Abrahart appeared in person, the Information Commissioner did not attend, and the DfE was represented by Laura Shepherd of counsel, with Elizabeth Franey giving evidence for the department in place of a retired colleague.
The appeals arise from a campaign by bereaved families whose children had died by suicide at while at university, lead by Dr Abrahart, through the LEARN Network and ForThe100, for a statutory duty of care in higher education.
A petition was debated in Parliament in June 2023, and the Government's response was that a statutory duty was unnecessary because a common law duty already exists. The issue generated a series of FOIA requests to the DfE from Abrahart and others, and by June 2024 the department had written to him after 14 requests in a short period, saying it had already replied in detail to 38 letters from him since November 2023 and that the burden was disrupting other work, particularly on student mental health.
A further letter of 12 August 2024, which Dr Abrahart described as a "reset letter", assured him that section 14(1) was not a blanket ban and that each future request would be considered on its merits.
Section 14(1) FOIA provides that a public authority is not obliged to comply with a vexatious request. Section 14(2) provides that where an authority has previously complied with a request made by any person, it is not obliged to comply with a subsequent identical or substantially similar request from that person unless a reasonable interval has elapsed.
Sections 35 (formulation or development of government policy) and 42 (legal professional privilege) are qualified exemptions subject to the public interest test in section 2(2)(b), while section 40(2) protects third-party personal data where disclosure would contravene the data protection principles.
Two of the appeals concerned requests about the DfE's handling of a request made by a co-campaigner on 3 October 2023 for anonymised copies of legal advice withheld under section 42 from yet another requester. That refusal had been upheld by the Commissioner in October 2024 and by the tribunal in July 2025.
Dr Abrahart's 18th request, on 31 October 2024, sought all material the DfE had provided to the Commissioner during that investigation, excluding the privileged emails. His 19th, on 12 November 2024, sought internal records on why the DfE had added a section 40(2) exemption at internal review. The DfE refused both as repetitive, on the basis that they closely mirrored requests from a co-campaigner. The Commissioner instead upheld both refusals under section 14(1), finding the requests had drifted from their original purpose.
On section 14(2), the tribunal found the department had got it wrong in both cases. Franey accepted in cross-examination that Dr Abrahart had never made the same or a substantially similar request before and that the co-campaigner was a different person. Shepherd argued that the requests could be treated as made by persons "acting in concert" through a concept of agency.
In the 1222 decision the tribunal said it was "unattracted to this novel line of argument", noting counsel had acknowledged no case law supported it and that the words "that person" can only mean the person who made the earlier request. In the 1220 decision it observed that "acting in concert" is a term drawn from section 12(4)(b), which was not in play. The tribunal also found the Commissioner had been wrong to record that the DfE had refused the 18th request as vexatious, when the refusal letter had plainly relied on repetition.
The tribunal nonetheless upheld both refusals under section 14(1), rejecting Abrahart's complaint that the Commissioner had substituted a new basis without notice. Standing in the Commissioner's shoes, the tribunal could consider any exemption, and following McInerney the DfE was not confined to the grounds in its refusal notice.
Dr Abrahart had been on notice of the section 14(1) case from the DfE's response and had replied to it. Nor did the August 2024 letter wipe the slate clean. It did not say the history of requests would be disregarded, and the fact the DfE subsequently refused on repetition rather than vexatiousness showed the request had in fact been considered on its merits.
Applying Dransfield holistically, the tribunal accepted both requests were precise and would not have been difficult to answer, and that the DfE had wrongly told the Commissioner it had received 43 FOIA requests, a figure that included internal reviews. But the requests were the 18th and 19th in a period of five to six months from May 2024, accompanied by voluminous correspondence, and the cumulative burden had become serious and disproportionate.
The tribunal accepted Dr Abrahart's stated motive of scrutinising DfE processes, but found the serious purpose had diminished from the core issue of student suicide to why the DfE had decided as it did on someone else's request, which was already subject to the statutory complaint and appeal process. Information on those decisions was unlikely to be of much wider public interest.
There was no suggestion of harassment, the DfE describing Dr Abrahart as "always civil", but that was not a prerequisite. The requests had drifted from the original inquiry and fell squarely within the "vexatiousness by drift" described by the Court of Appeal in Dransfield, even if not vexatious viewed in isolation.
In the 1220 appeal Dr Abrahart had told the tribunal he had since obtained the single document he was seeking, a 13-page letter from a DfE FOI compliance manager to the Commissioner, after it was disclosed in separate tribunal proceedings involving a different appellant and passed to him.
The DfE said this breached the tribunal's standard directions on use of disclosed documents but did not object to its use in the appeal. The tribunal said the letter's availability by other means was irrelevant to whether the request was vexatious, and remarked that his submission that the DfE should have asked for requests to be spaced out was "telling", as it indicated the requests were never going to stop.
The third appeal, [2026] UKFTT 1221 (GRC), concerned a request of 13 August 2024, made the day after the reset letter, for redacted copies of emails withheld from another requester about the DfE's response to the petition. The DfE relied on sections 35, 40(2) and 42, disclosing some redacted emails during the Commissioner's investigation after conceding section 35 had been applied too widely.
The Commissioner upheld the remaining refusals in June 2025. Abrahart argued the DfE had failed to carry out a proper line-by-line redaction exercise and that the policy on a statutory duty of care had closed at the June 2023 debate, so section 35 could not apply.
The tribunal found section 35(1)(a) engaged, holding that whether a policy process is still live goes to the public interest balance rather than engagement, following Morland v Cabinet Office. On the public interest, it found that at the October 2024 refusal date policy development on student mental health in higher education remained ongoing, with the Higher Education Mental Health Implementation Taskforce reconvened under ministerial oversight, and that the duty of care question could not be divorced from that wider work.
Letters from Baroness Smith of Malvern in September 2024 and June 2025 confirmed the government would not legislate but was addressing the concerns through the taskforce. The tribunal said it was not swayed by the generic "safe space" point but accepted there was a well-founded basis for concern about a chilling effect while discussions continued, and that disclosure would probably have been severely detrimental to ongoing policy.
On section 42, having reviewed the closed bundle, the tribunal was satisfied the material was legal advice sought from and given by Government Legal Department lawyers in an ongoing lawyer-client relationship, and applied the approach in DBERR v O'Brien under which the in-built public interest in privilege carries significant weight. It found no clear, compelling and specific justification for disclosure of at least equivalent weight.
On section 40(2), the tribunal accepted there was a legitimate interest in the names and job titles of more senior officials but noted the Commissioner had confirmed no such material remained undisclosed. Having found the decision notice lawful, the tribunal declined to consider the DfE's late reliance on section 14, observing that both parties had been "seemingly consumed" by that issue at the hearing despite it forming no part of the Commissioner's decision.
