Legislation for cyclists

Summary

The Department of Infrastructure refused a series of Freedom of Information requests regarding cyclists' legislation, steam locomotives, and the Douglas Promenade, classifying them as vexatious due to their frequency and burden on resources. No information was disclosed as the requests were rejected under Section 11(3)(d) of the FOIA 2015.

Key Facts

• The requests were refused on the grounds of being vexatious, frequent, overlapping, and burdensome.
• The requester submitted 20 individual requests over a period of 19 weeks.
• Eight of the submitted requests were withdrawn with an understanding to re-submit, but were never re-submitted.
• The refusal applies to the specific requests rather than the requester personally.
• The Department cited Section 11(3)(d) of the Freedom of Information Act 2015 as the legal basis for refusal.

Data Disclosed

• £420,000
• 2017-07-11
• 2017-07-13
• 19 weeks
• 20 individual requests
• 8 withdrawn requests
• 90%
• 14 questions
• 2013
• 2014
• 2015
• 2016
• 2017

Exemptions Cited

• Section 11(3)(d) of the Freedom of Information Act 2015 (Vexatious request)

Data Tables (9)

Full Response Text

Department of Infrastructure Sea Terminal Building, Douglas, Isle of Man, IM1 2RF

Freedom of Information Act 2015 Thank you for your requests dated 4th, 5th, 10th and 11th July 2017 under the Freedom of Information Act 2015 (FOIA).

Your requests (sic) Request Number Date received Questions IM94038I 4th July 2017 1. With reference to the locomotive bought in the USA at a cost of £420,000 could please advise from the date the locomotive came on Manx ground any monies spent on it since then. 2. Could you advise if it is now fully operational and meets the requirements that you determined prior to purchase. 3. If it is not fully operational can you advise of a date as to when you expect it to be and an estimate of further costs which have to be incurred to satisfy 2 above. 4. How many miles has it covered for the years 2013, 2014, 2015, 2016 and to date in 2017.
IM94124I 5th July 2017 1. Can you advise of the number of occasions since the purchase of "cabbage" that steam trains has broken down whilst in use? 2. Can you advise as to the means of how the stream train was recovered and by what Means?
3. Does the Director of transport have any personal intrest in the catering company in the ticket hall and fine dining on the Train?
4. Was the Director of Transport given extra discount in the purchase of Mercedes car as it relates to the purchasing of Mercedes Buses

page 2 of 4 IM94605I 10th July 2017 1. A breakdown by way of cost headings for the construction of the Promenade 2. Where is the excavated material going to be taken and disposed of. 3. Will the Depts quarries be supplying the stone and tarmac layers. 4. A copy of the working plans by post please. 5. What is the amount of contiguency
6. A breakdown of professional fees incurred.
7. Has an allowance been included for people who died from Anthrax from the then Hospital in Regent Street. IM94717I 11th July 2017 In the Memo to Tynwald members re Douglas Promenade it refers to 90% of the work will be awarded to local contractors can you advise of the name of the local Contractors?
IM94736I 11th July 2017 Could you provide copies of the legislation as it applies to the use of public roads by cyclists?

Response to your request

While our aim is to provide information whenever possible, on this occasion, a practical refusal reason, under section 11(3)(d) of FOIA, applies, which cannot be removed, despite the Department providing advice and assistance to you. Specifically, a public authority may refuse to give the information requested if the request for information is vexatious, malicious, frivolous, misconceived or lacking in substance. Therefore, we are refusing your above listed requests. Our reasons are given below.

Examples of factors which a public authority may take into account in determining if your request is vexatious are set out in the Code of Practice issued under s60 of the Act, an extract of which you can find in Appendix 1.

Frequent, overlapping, burdensome and frivolous

We consider that a number of these factors apply to your requests: under section 2.4(b) of the Code of Practice, these requests are both ‘frequent or overlapping’ and are a ‘burden on an authority’; for these reasons, we consider that your requests fall within the classification of vexatious and we are therefore within the legal protections of the Act which allow us to refuse them.

While some of the requests appear reasonable, most of them ask more than one question, and some of them required further clarification. While we are not commenting on the subject matter of your questions the Department cannot reasonably be expected to process all of these requests at the same time as dealing with other submitted requests. The effort required will be disproportionate in terms of the strain on time and resources. Please be assured that, in accordance with section 2.2(b) of the Code, this refusal is being applied to the requests, and not the requester.

page 3 of 4 For your information you have, over the last 19 weeks, submitted 20 individual requests, 8 of which have gone to one Division in three lots. One topic had 4 individual requests with a total of 14 questions, most of which have required clarification.

Of the 20 requests, 8 have been withdrawn, with the understanding that you were going to re- submit them at a later date. These have not been re-submitted, therefore bringing into question the purpose of those requests in the first place.

The guidance on freedom of information on the Isle of Man Government’s website states:

“Aim for one question per request. Asking for lots of different information within one request can make it difficult to understand what you are requesting.”

However, we understand that it may be difficult to compress your request into just one question; therefore we would expect it to cover only one, clearly defined topic, and not consist of many parts.

The Information Commissioner’s (IC) Guidance for making the most of your request and an extract from the IC’s decision notice 2016/0003 (paragraphs 22 and 23) are attached in Appendix 2. This should be considered for all future requests to avoid rejection.

Advice and Assistance

In accordance with the Act and the Code of Practice, the Department believes that it has gone out of its way to advise and assist with your requests. Every time we have sought clarification we have advised you of the requirements of the Act. The Department has also written to you formally offering advice, and warning that if you continue to disregard the advice given, then we would have no other option than to refuse your requests, a decision we do not take lightly.

Should you wish to re-submit your requests in accordance with the Act and the advice we have provided, we would be more than happy to process them.

Your right to request a review

If you are unhappy with this response to your Freedom of Information request, you may ask us to carry out an internal review of the response, by completing a complaint form and submitting it electronically to foi.doi@gov.im or by delivery/post to Mr Ian Harris, Department of Infrastructure, Sea Terminal Buildings, Douglas, IM1 2RF. An electronic version and paper version of our complaint form can be found by going to our website at https://www.gov.im/about-the-government/freedom-of-information/

Your review request should explain why you are dissatisfied with this response, and should be made as soon as practicable. We will respond as soon as the review has been concluded.

If you are not satisfied with the result of the review, you then have the right to appeal to the Information Commissioner for a decision on;

1 Whether we have responded to your request for information in accordance with Part 2 of the Freedom of Information Act; or

2 Whether we are justified in refusing to give you the information requested.

page 4 of 4

In response to an application for review, the Information Commissioner may, at any time, attempt to resolve a matter by negotiation, conciliation, mediation or another form of alternative dispute resolution and will have regard to any outcome of this in making any subsequent decision. More detailed information on your rights to review is on the Information Commissioner’s website at: www.inforights.im/

Should you have any queries concerning this letter, please do not hesitate to contact me.

Further information about Freedom of Information requests can be found at https://www.gov.im/about-the-government/freedom-of-information/

APPENDIX 1 6

1. Determination of matters to which a Public Authority may have regard to in determining whether a request for information is vexatious, malicious, frivolous, misconceived or lacking in substance

2.1 Introduction

(a) Rights to privacy, effective government and value for the taxpayer are integral to the Act and practical refusal reasons exist to protect the resources of an Authority in its everyday business and from disproportionate use of the Act. An Authority may refuse to give an Applicant the information requested if the request is vexatious, malicious, frivolous, misconceived or lacking in substance.

(b) Before it can refuse to provide the information requested an Authority must:

(i) Ascertain whether a practical refusal reason exists because a request for information is vexatious, malicious, frivolous, misconceived or lacking in substance; and

(ii) Attempt to remove the practical refusal reason by the provision of advice and assistance to the Applicant.

(c) If the practical refusal reason cannot be removed then an Authority can refuse to provide the information requested based on its own assessment of all of the relevant circumstances of the case.

(d) Whilst the terms vexatious, malicious, frivolous, misconceived or lacking in substance denote separate characteristics, they may also overlap with one another. For example, something that is frivolous may also be vexatious or lacking in substance or both.

2.2 Considering the request

(a) Consideration of a request must be on the basis of each set of individual facts. A single, abusive offensive request or a torrent of individually benign requests which causes disruption can both engage this practical refusal reason.

(b) Any refusal can only be applied to the request and not the individual who submitted it. However, any apparent motive within the request may be relevant in considering whether the request is vexatious, malicious, frivolous, misconceived or lacking in substance or in determining if an Authority’s response has been reasonable.

(c) When considering a request, in exceptional circumstances, an Authority can look behind the request and consider it in light of its context and history. A request which appears completely benign on the surface but forms part of a wider trend when looked at in context can meet the criteria to be refused under this provision. What amounts to exceptional circumstances shall be determined by an Authority on a case by case basis.

(d) If an Authority is concerned about possible prejudice arising from disclosure, then it should consider whether any of the exemptions listed in the Act apply.

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2.3 Definition of vexatious, malicious, frivolous, misconceived or lacking in substance

(a) There is no legal definition however a request will meet the criteria if it amounts to a manifestly unjustified, inappropriate or improper use of a formal procedure.

(b) When considering whether a request is vexatious, malicious, frivolous, misconceived or lacking in substance, a request should be looked at as a whole and any use of a formulaic checklist should be avoided. A useful starting point is to ask the following questions:

(i) Will compliance with the request create a significant burden on an Authority in terms of expense and distraction?

(ii) Is the request designed to cause distress, disruption or irritation without any proper or justified cause?

(iii) Has the request the effect of harassing an Authority or its staff?

(iv) Can the request be characterised as obsessive or manifestly unreasonable?

(v) Does the request appear to have any serious purpose and/or value?

2.4 Indicators of when a request might be vexatious, malicious, frivolous, misconceived or lacking in substance

(a) The fact that a number of indicators apply in a particular case will not necessarily mean that an Authority may refuse the request. An Authority should take a holistic approach and consider all indicators in addition to any other factors in reaching a judgment as to whether the request amounts to being a disproportionate, manifestly unjustified, inappropriate or improper use of the Act. The fact that a request has one or more of the indicators does not necessarily mean that it meets the criteria and the strength of the indicators will vary in importance depending on the particular circumstances of the case. Some factors will be easier to evidence and support than others.

(b) Indicators that a request might be vexatious:

Abusive or aggressive language The tone or language of the Applicant’s correspondence goes beyond the level of criticism that an Authority or its employees should reasonably expect to receive. Burden on an Authority The effort required to meet the request will be disproportionate in terms of the strain on time and resources, that an Authority cannot reasonably be expected to comply, no matter how legitimate the subject matter or valid the intentions of the Applicant. Deliberate intention to cause annoyance
The Applicant has explicitly stated that it is their intention to cause disruption to an Authority, or is a member of a campaign group whose stated aim is to disrupt an Authority. Disproportionate effort The matter being pursued by the Applicant is relatively trivial and an Authority would have to expend a disproportionate amount of resources in order to meet their request.

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Frequent or overlapping requests The Applicant submits frequent correspondence about the same issue or sends in new requests before an Authority has had an opportunity to address their earlier enquiries. Futile requests The issue at hand individually affects the Applicant and has already been conclusively resolved by an Authority or subjected to some form of independent investigation. Intransigence The Applicant takes an unreasonably entrenched position, rejecting attempts to assist and advise and shows no willingness to engage with an Authority. Motive This might be an important factor in determining vexatiousness. A request may start as reasonable but lead to further requests which become increasingly distant from the Applicant’s starting point. No obvious intent to obtain information The Applicant is abusing their rights of access to information by using the Act as a means to vent their anger at a particular decision, or to harass and annoy an Authority, for example, by requesting information which an Authority knows them to possess already. Obsessive conduct Conduct that harasses or distresses staff or uses intemperate language, or which makes unsubstantiated allegations or contains abuse. Personal grudges The Applicant is targeting correspondence towards a particular employee or office holder against whom they have some personal hostility. Scattergun approach The request appears to be part of a completely random approach, lacks any clear focus, or seems to have been solely designed for the purpose of “fishing” for information without any idea of what might be revealed. Unfounded accusations within a request The request includes completely un

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