Requests for further information declined under s 18(h)—requests not frivolous or vexatious—the information had not previously been made available
Request to Apple and Pear Marketing Board involved substantial collation or research and the creation of explanations— ss 18(f) and 18(g) apply
In both these cases, requests were declined on the grounds that they were vexatious. The requesters, one a company and the other a private individual, had each made a series of requests for information held in respect of decisions made with which they did not agree. The holders of the information in each case felt they had provided enough information and that further requests were therefore vexatious.
In each case, the requesters had been deeply disappointed by decisions which had been unfavourable to them and had sought to obtain all information held by the organisation concerned and which the requesters considered would have been relevant to the decision making process. Upon examination of the facts in each case, and having regard to the approach taken by the Courts when considering striking out pleadings on the ground that they are ‘frivolous or vexatious’, in neither case could it be said that the request was such that no reasonable person could properly treat it as bona fide. In other words, the test for ‘frivolous and vexatious’ in Norman v Matthews (1916) 85 LJKB 857 [1916-17] All E Rep 696 could not be made out in either case. Lush J explained that test as follows at page 859:
There is an inherent power in every Court to stay and dismiss actions or applications which are frivolous and vexatious and abusive of the process of the Court … In order to bring a case within the description it is not sufficient merely to say that the plaintiff has no cause of action. It must appear that his alleged cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide, and contend that he had a grievance which he was entitled to bring before the Court.
While the requesters were undoubtedly persistent, in each case their requests were for information which had not previously been made available to them. Accordingly, in neither case could information be withheld in reliance upon section 18(h) of the OIA.
With regard to the company’s request to the Apple and Pear Marketing Board, the company had sought the following information:
- Full details of each market segment including price premiums, customers, varieties, volumes, sizes, etc.
- The premium characteristics which will allow ENZA to be sold at a premium, and evidence of the ability the Board has to handle the volumes expected.
- An explanation as to how [ENZA’s quality control and checking systems] translate to the premium prices which the Board claims it achieves, particularly in respect to Granny Smith and Red Delicious varieties.
- An explanation as to how, based on the market segment for ENZA, the Board expects the price ‘premiums’ obtained to be affected by the sale of Apple Fields higher specification apples.
The Ombudsman accepted that the information requested at point 1 could not be made available without substantial collation or research (section 18(f) of the OIA). This was based on the Board’s estimate that it would take at least 100-150 hours to find and collate the information.
The Ombudsman accepted that the remainder of the requested information was not held by the Board. The Board would be required to create the requested ‘explanations’ by conducting further research and seeking opinions from its agents and contacts throughout the world. In his opinion, these aspects of the request could be refused under section 18(g) of the OIA, because the information was not held.
This case note is published under the authority of the Ombudsmen Rules 1989 opens page in this tab. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.