The cost burden on a public authority alone will “rarely justify” a finding of vexatiousness, particularly where there is no evidence of improper motive, harassment or misuse of the FOIA regime, the First Tier Tribunal has ruled, overturning an Information Commissioner’s decision that a FOI request made to the Health & Safety Executive (HSE) was vexatious.
The Tribunal, chaired by Judge Brian Kennedy KC, noted the Court of Appeal’s guidance in Dransfield v Information Commissioner and Devon County Council [2015] EWCA Civ 454 that burden is a recognised indicator of vexatiousness. It emphasised, however, that the test under section 14(1) of the Freedom of Information Act (FOIA) is holistic, context‑specific and subject to a high threshold.
Nevertheless, it did still refuse the appeal, substituting instead a refusal based on excessive cost under section 12(1).
The appeal in in Peter Swain v The Information Commissioner [2026] UKFTT 579 (GRC) arose from a wide-ranging 16‑part request made by the appellant, an occupational hygienist working in the offshore oil and gas sector, on 1 October 2024. Items 1–15 were treated as an FOI request, with item 16 handled as a subject access request.
The request followed a series of complaints the appellant had made to the HSE since 2021, alleging bullying, harassment and discrimination in the course of regulatory interactions involving third‑party duty holders.
In its Decision Notice (IC‑378755‑P4D6), the Commissioner upheld the HSE’s refusal of the request under section 14(1) FOIA, concluding that it was vexatious. The Decision Notice also recorded that section 12(1) (cost of compliance) would in any event be engaged, given the burden involved in responding.
The Commissioner further noted that some elements of the request did not clearly seek recorded information.
The Tribunal noted that this was the appellant’s first FOI request to the HSE. Although the HSE relied on a history of previous complaints, the Tribunal observed that the evidence before it consisted largely of a redacted internal “Complaints Overview”, without the underlying investigation files or any independent determinations, such as Ombudsman findings.
In the absence of primary material, the Tribunal said, it could not place weight on assertions that the appellant’s concerns had already been exhaustively considered, nor on characterisations of his conduct in earlier interactions.
On the evidence available, the Tribunal found that the appellant’s concerns appeared sincerely held and that there was no basis to characterise the request as abusive or harassing. Section 14(1) had therefore not been properly engaged.
The Tribunal went on to find that section 12(1) FOIA clearly applied. The evidence showed that responding to just two elements of the request (items 8 and 11) would require the manual review of 2,036 offshore cases over a five‑year period. The HSE had estimated that this would take approximately 716.6 hours, far in excess of the applicable cost limit of 18 hours.
That estimate was not challenged on the materials before the Tribunal. Once the appropriate limit is exceeded, the Tribunal noted, no public interest test applies.
The Tribunal therefore concluded that the HSE was entitled to refuse the request under section 12(1).
Although it did not affect the outcome of the appeal, the Tribunal commented that the HSE had acknowledged during the ICO investigation that it could have done more to advise and assist the requester in refining his request, as required by section 16 FOIA.
The Tribunal noted this shortcoming for the purposes of future compliance but made clear that it did not alter the legal effect of section 12 in this case.
