Edward Williams v The Information Commissioner

1. The request is vexatious and the appeal is dismissed. REASONS Background

2. This appeal relates to the refusal to disclose audio and/or video recordings relating to the police shooting of Chris Kaba on 5 September 2022. The appellant made a request to the Independent Office for Police Conduct (the IOPC) on 14 September 2022 in the following terms: Disclose all audio or video recordings relating to shooting of Chris Kaba in Streatham Hill. This only includes videos recorded at the incident up to one hour before and after the actual shooting. Please note that this request is made for the purposes of journalism. There is a substantial public interest in this matter. An officer has been suspended. There has been a demo.

3. In a letter dated 13 October 2022, the IOPC refused to comply with the request, relying on section 14(1) of the Freedom of Information Act 2000 (FOIA) because it considered it to be vexatious. The IOPC gave the following reasons: (i) The incident occurred on 5 September 2022 and is the subject of an ongoing homicide investigation. The early stage of the investigation means that the potential significance of any evidence held is yet to be assessed. (ii) Compliance with the request would require the retrieval and assessment of all the video evidence held on 14 September 2022 to determine whether it fell within the scope of the request. This would not be easy to confirm because it has been gathered from a range of sources, including members of the public. Some files may have to be edited to remove footage outside the scope of the request. All footage would have to be assessed to consider whether disclosure of any part of it might prejudice the ongoing investigation or its outcomes or whether it would be exempt for any other reason. Making those assessments may be difficult in the early stages of an investigation with the result that disclosure would be likely to be refused where there was any doubt about its potential significance. This work would place a considerable burden on operational staff who would be distracted from their duties in a highly sensitive investigation. (iii) There is significant public interest in refusing the request to ensure that disclosure does not undermine confidence in the investigation and because there are very good reasons for anticipating that premature disclosure would have a damaging effect on the investigation. (iv) Where disclosure could jeopardise the chances of any offenders being brought to justice, there is no reasonable foundation for thinking that the information could be of value to the public at that time (as per the First-tier Tribunal in EA/2020/0015). (v) The cost of identifying information within the scope of the request which had no relevance to the investigation would not be justified by any intrinsic public interest in disclosure. (vi) The appellant ought to have known based on previous responses to similar requests for IOPC investigation evidence that he was unlikely to receive it because it would be exempt for good reason.

4. An inquest was opened on 4 October 2022.

5. On 13 October 2022 the appellant requested that the IOPC conduct an internal review of its response. The IOPC sought clarification on 17 October 2022 of the reasons the appellant was dissatisfied with its response. The appellant did not respond.

6. On 17 October 2022 the appellant complained to the first respondent, the Information Commissioner (the Commissioner) about the way his request for information had been handled.

7. During the course of the Commissioner’s investigation, the IOPC referred to correspondence relating to another similar complaint from the appellant to demonstrate why the appellant knew or ought to have known that this request would be unsuccessful. It stated that the appellant had had the benefit of multiple responses from the IOPC highlighting why it would not disclose reports or information while investigations or proceedings were ongoing. The IOPC relied on the appellant’s failure to respond to its request for clarification of the reasons for his complaint as further evidence of the vexatious nature of his request. The respondent’s decision

8. In a decision notice dated 14 December 2022, the Commissioner gave reasons for his decision that the IOPC had correctly applied section 14(1) of FOIA in refusing to disclose the requested information.

9. The Commissioner considered the history of the appellant’s dealings with the IOPC and his persistence in seeking information that was unlikely to be disclosed to the world at large under FOIA. The Commissioner considered the value and purpose of the appellant’s request and found that the appellant had not submitted any arguments to demonstrate any value or purpose over and above an assertion that disclosure would be in the public interest.

10. The Commissioner found that the appellant’s request was vexatious and that the IOPC was entitled to rely on section 14(1) of FOIA. The appellant’s case

11. The appellant lodged an appeal against the Commissioner’s decision on 14 December 2022. He submitted various reports available in the public domain which relate to the incident giving rise to his request.

12. In his grounds of appeal, the appellant contended that the fact that the IOPC’s evidence gathering process was ongoing was an insufficient basis on which to find his request vexatious and that there is obvious value and purpose in understanding the circumstances of the death. The appellant pointed to the news article in which it reported the IOPC regional director’s recognition that there was community concern following the incident as evidence of the public interest.

13. The appellant requested that the tribunal set aside the decision notice and substitute its own decision.

14. The appellant’s arguments as set out in his skeleton argument can be summarised as follows: (i) The decision notice fails to give adequate reasons for the finding that the request was vexatious. The appellant contends that the Commissioner failed to explain what the potential prejudice arising in consequence of disclosure might be. (ii) That in upholding the IOPC’s reliance on section 14(1) , the Commissioner has effectively turned that section into an absolute exemption. The appellant notes the IOPC’s position that had section 14(1) not applied, section 30(1)(a)(i) would have been relied on, which is a qualified exemption, requiring a balancing of the public interest. (iii) Mere persistence in making requests amounts to a disagreement but does not make those requests vexatious. The appellant submits that requesting evidence relating to a live IOPC investigation is not unreasonable, citing decision notice IC-351744-X8W2 (which related to a request for different information relating to the shooting of Chris Kaba made by someone other than the appellant). (iv) The Commissioner failed to give adequate weight to the strong public interest in disclosure of the requested information; and gave too much weight to the failure to respond to the IOPC’s letter dated 17 October 2022. The respondent’s case

15. The Commissioner submits that because an assessment of whether a request is vexatious requires a holistic assessment, it is necessary to consider the context of the appellant’s history of making requests to the IOPC for similar information in circumstances where an IOPC investigation was still live.

16. In relation to this request, the Commissioner notes that the appellant requested information only nine days after the incident and in light of announcements from the IOPC containing information about the investigation on 6, 7, 8 and 9 September 2022.

17. The Commissioner submits that the timing of the appellant’s request, and the appellant’s history of making similar requests in similar circumstances which were refused are relevant to whether this request is vexatious. The Commissioner submits that the appellant has wrongly focused solely on there being public interest in the information. The Commissioner acknowledges that the public interest in the information is a relevant factor but contends that it is not a trump card.

18. In his response to the appeal, the Commissioner invited the tribunal to stay the appeal pending consideration by the Upper Tribunal of another appeal ( Williams v the Information Commissioner [2023] UKUT 213 (AAC) ), in which the appellant was the requester. The Commissioner submitted that it was relevant to stay the present appeal because the requester, the public authority, the background and the exemption relied on are the same as in the present appeal. The tribunal granted a stay. We note that for ease of reference, we have referred to this decision of the Upper Tribunal as Williams below. All references to Williams in this decision are to this particular decision of the Upper Tribunal. The law

19. Section 14 of FOIA provides where relevant: (1) Section 1(1) does not oblige a public authority to comply with a request for information if the request is vexatious.

20. ‘Vexatious’ is not defined in FOIA, but relevant guidance was given by the Upper Tribunal in Information Commissioner v Devon City Council & Dransfield [2012] UKUT 440 (AAC) . The Upper Tribunal considered that there are four broad themes to be considered when determining if a request is vexatious. They are (1) the burden on the public authority; (2) the motive of the requester; (s) the value or serious purpose of the request; and (4) any harassment and/or distress caused. When that case came before the Court of Appeal, the Court of Appeal held that: …vexatiousness primarily involves making a request which has no reasonable foundation… for thinking that the information sought would be of value to the requester, or to the public or any section of the public.

21. The Court of Appeal upheld the Upper Tribunal’s decision in Dransfield, and the guidance given by the Upper Tribunal therefore continues to be followed. We are required to consider all the relevant circumstances and reach a balanced conclusion as to whether the request is vexatious. The following principles can be taken from relevant caselaw: (i) The starting point is to consider the value of the request, but this is not a trump card. Significant public interest in disclosure will not necessarily outweigh other factors. (ii) If the cost of complying with a request would be high, that of itself can render the request vexatious, even if it has value to the public; however, the threshold for finding a request vexatious solely on this basis is a high one. (iii) Requests must be considered in context, meaning that previous dealings between a requester and a public authority may be taken into account when assessing if a request is vexatious. This is the case even if the request would not be vexatious if viewed in isolation. Where previous dealings are relied on, there must be an appropriately detailed evidential foundation addressing the course of dealings. (iv) The possible availability of the requested information through disclosure in other proceedings is irrelevant to the seriousness of the purpose for which the information was sought. (v) Circumstances arising after the date on which the public authority was required to determine the request cannot be taken into account when determining when the request was vexatious. (vi) When taking account of the extent of work required to produce the necessary information, the time and cost of redacting documents can be taken into account. The hearing

22. As stated above, this appeal was stayed behind Williams . Although the Upper Tribunal gave its decision in that case on 10 October 2023, the stay in this appeal was not lifted until November 2025. It is not clear why there was such a delay but that is the reason it has taken so long for this appeal to reach a final hearing.

23. The Commissioner was not represented at the hearing and did not appear. We were satisfied that the Commissioner had been properly notified of the hearing and chose not to attend. We considered that it was possible to determine the issues in the appeal in the Commissioner’s absence with the benefit of his written response.

24. The appellant provided a skeleton argument, and we invited him to elaborate on that in oral submissions. We have taken all of the documents contained in the hearing bundle and the supplementary bundle into account, together with the oral submissions in reaching our decision. Findings and reasons

25. In his oral submissions, the appellant contended that we should not have any regard to the Upper Tribunal’s decision in Williams because it is prejudicial and taints this appeal process. He submitted that we could take nothing that happened after the request at issue in the present appeal and the response to it into account. Although he did not cite it, it appears that the appellant relies on the decision of the Upper Tribunal in Soh v IC and Imperial College [2016] UKUT 249 (AAC) in which it was held that in determining whether a request is vexatious, consideration should only be given to evidence up to the time when the public authority should have responded.

26. We deal with the appellant’s argument briefly. We reject it. The decision of the Upper Tribunal in Williams is not evidence pertaining to the request which is the subject of this appeal. The decision of the Upper Tribunal is binding caselaw, which we are bound to follow, unless and until it is overturned. The appellant did not point us to any authority which suggests that the Upper Tribunal decision was wrongly decided which would provide a basis on which we could depart from the decision in Williams .

27. We address each of the four themes identified in Dransfield in turn. The burden on the IOPC

28. As set out in paragraph 4(ii) above, the IOPC set out details of the burden that complying with the appellant’s request would place on its officers in the early stages of a highly sensitive investigation.

29. The appellant submitted that the IOPC has a substantial budget and that his request would not represent a burden on that budget. The fact that the IOPC may have a large overall budget carries little or no weight in our view. The appellant has relied on no evidence to demonstrate what proportion of the IOPC’s budget is for the cost of compliance with its FOIA obligations or that the appellant’s request would represent a small proportion of the budget.

30. The appellant complained that the IOPC failed to state what might need redacting or provide an estimate of how long it might take. While this is true, we consider that the detail the IOPC did provide as set out above is sufficient to determine that it would take a substantial amount of time, potentially by a number of officers. We accept that complying with the request would place a considerable burden on the public authority. The motive of the requester

31. It is not suggested that the appellant’s motive is in any way improper, or that it was to cause annoyance or disruption. Harassment or distress caused

32. There is no suggestion that the appellant’s request was designed to cause distress or harassment. The underlying purpose of the request

33. The appellant advised that his request was made for the ‘purposes of journalism’ and referred to the significant public interest in the case. The incident which gave rise to the appellant’s request for information is one that attracted a significant amount of media attention and is one that is of interest to many people. The appellant’s position is that his request has value because it is in the public interest for the information to be disclosed. We accept that the appellant’s request can be seen to have a genuine and serious underlying purpose. However, we note that the fact that the information may be of interest to many people is not the same as disclosure of that information being in the public interest.

34. The IOPC acknowledged that there was legitimate public concern about the incident but also noted that this is relevant to the significant public interest in preventing disclosure which could undermine confidence in its investigation and which could have a damaging effect on the investigation.

35. As has been made clear in the jurisprudence, the context in which a request has been made is a relevant consideration when deciding whether that request is vexatious. This includes the context and history of the particular request, in terms of the previous course of dealings between the individual request and the public authority ( CP v The Information Commissioner [2016] UKUT 0427 (AAC) ).

36. Therefore, while we accept that there may well be a genuine and serious underlying purpose to this request, we find that the appellant had by the time he made this request, had responses to other, similar requests for investigation evidence which ought to have indicated to him that he was very unlikely to receive the information requested and the reasons why not .

37. The timing of the appellant’s request is significant here. The appellant’s request was made only 9 days after the incident. The IOPC’s public statements about the case made it clear that there was an ongoing homicide investigation. That this investigation was ongoing was made clear to the appellant in the IOPC’s response dated 13 October 2022, as was the fact that given the early stage of the investigation, the significance of much of the evidence held had yet to be assessed or determined.

38. The appellant complains that the IOPC failed to explain the claimed prejudice likely to arise from disclosure. As can be seen from the IOPC’s letter to the Commissioner dated 29 November 2022 (D81, hearing bundle), one example of the potential prejudice or harm is as follows: The risks of disclosing potentially sensitive information at the early stages of an IOPC investigation were clearly demonstrated in the Mark Duggan case. Mr Duggan was fatally shot by police in Tottenham on 4 August 2011 and the matter was investigated by our predecessor body, the IPCC. The words used in a discussion on 5 August 2011 between a journalist and an IPCC staff member were reported as indicating that shots had been exchanged between Mr Duggan and police. This resulted in a significant increase in community tension and mistrust of the IPCC by family members in particular. As was reported in the media, the shooting of Mark Duggan was understood to be the catalyst for large scale civil unrest in London and elsewhere in the following weeks.

39. In addition to this, it is clear to us that disclosing the requested information before the significance of that information has been assessed and its relevance to not only the IOPC investigation, but also to possible criminal proceedings could have the effect of prejudicing both of those processes. We find that the potential prejudice or harm resulting from disclosure is sufficiently made out.

40. The appellant argued that the ability of a public authority to rely on section 14(1) effectively gives them an ability to create a blanket exemption, which is not permissible. Although we have looked at the context in which this request was made, we have nevertheless considered it on its own merits.

41. For the reasons set out above, we find that the appellant’s request is vexatious and that section 14(1) was correctly relied on. The appeal is dismissed. Signed J K Swaney Date 11 March 2026 Judge J K Swaney Judge of the First-tier Tribunal