Information Commissioner's Decision Overturned: FOIA Request Not Vexatious

Neutral citation number: [2026] UKFTT 00905 (GRC) Case Reference: FT/EA/2024/0128 First-tier Tribunal (General Regulatory Chamber) Information Rights Heard by Cloud Video Platform Heard on: 18 th March 2026 Decision given on: 19 th June 2026 Before JUDGE KIAI MEMBER TAYLOR MEMBER YATES Between [APPELLANT] Appellant and (1) THE INFORMATION COMMISSIONER First Respondent (2) SECRETARY OF STATE FOR LEVELLING UP, HOUSING AND COMMUNITIES Second Respondent Representation : For the Appellant: The [APPELLANT] represented himself For the First Respondent: Not represented For the Second Respondent: Mr Richard Hanstock (Counsel) Decision : The appeal is Allowed.

1. The Decision Notice dated 18 March 2024 is not in accordance with the law and is set aside. A substituted decision notice is issued below. Substituted Decision Notice :

2. The Decision Notice dated 18 March 2024 is not in accordance with the law insofar as it concludes that the Second Respondent was entitled to rely upon section 14(1) FOIA on the basis identified in the Decision Notice. Steps Required 3. The public authority must: a. Reconsider the request afresh in accordance with the requirements of FOIA; b. Determine whether it holds information within the scope of the request for the purposes of section 1(1)(a); c. Determine, taking into account all relevant considerations, whether any exemption or other basis for refusal under FOIA is engaged; d. Where an exemption is relied upon, issue a refusal notice compliant with section 17 FOIA, including where applicable, the conduct and outcome of any required public interest test; e. In the event that no exemption applies, communicate the information in accordance with section 1(1)(b) FOIA.

4. In carrying out that exercise, the public authority is not restricted to the reasoning set out in the Decision Notice but must ensure that any reliance on FOIA is properly and lawfully applied.

5. The time for compliance with this substituted decision notice is 35 days from the date this decision is issued.

6. This decision does not require disclosure of any specific information and does not determine the application of any exemption other than section 14(1) on the basis identified in the Decision Notice. REASONS Introduction 1. This appeal concerns a request made under the Freedom of Information Act 2000 (“FOIA”) for disclosure of the Developer Remediation Contract entered into between the Secretary of State and Barratt Developments PLC, together with its appendices, addendum, and associated documentation. The request sits within the broader context of the Government’s response to the remediation of residential buildings affected by serious fire safety defects, and in particular the arrangements entered into with developers for the purposes of addressing such risks.

2. The Information Commissioner determined, by Decision Notice dated 18 March 2024 (reference IC-261246-G8M0), that the second respondent, the Secretary of State for Levelling Up, Housing and Communities (“DLUHC”), was entitled to refuse the request under section 14(1) FOIA on the basis that compliance would impose a grossly disproportionate burden, such that the request was properly to be characterised as vexatious. The [APPELLANT] challenges that conclusion.

3. The Tribunal’s task is to determine, in accordance with section 58 FOIA, whether that Decision Notice is in accordance with the law. If the Tribunal concludes that it is not, it must allow the appeal and substitute such notice as ought to have been given.

4. The Tribunal held an oral hearing at which the [APPELLANT] appeared in person and made oral submissions. The second respondent was represented and advanced submissions both in writing and orally. The Commissioner did not attend the hearing but relied upon written submissions. The Tribunal is grateful to the [APPELLANT] for the clarity with which he presented his case and to Mr Richard Hanstock on behalf of the second respondent for his invaluable assistance and the measured way in which he advanced his case.

5. At its core, the appeal raises the question whether the Commissioner erred in concluding that the request was vexatious within the meaning of section 14(1). However, as became clear in the course of both the written and oral submissions, the resolution of that question depends critically upon the proper construction of the request itself, and in particular upon whether the Commissioner adequately engaged with the manner in which the request had been pursued and understood in the correspondence between the parties.

6. The Tribunal considers it important to emphasise at the outset that the statutory concept of “vexatiousness” is a technical one, directed to the proper functioning of the FOIA regime and the protection of public authorities from disproportionate burdens. It does not reflect upon the good faith of the requester, nor upon the legitimacy or public importance of the subject matter. In the present case, the information sought plainly relates to matters of significant concern to leaseholders and the wider public, and nothing in this decision should be taken as diminishing that context.

7. For the reasons that follow, the Tribunal concludes that the Decision Notice is not in accordance with the law. Background 8. On 19 April 2023 the [APPELLANT] made a request under the Freedom of Information Act 2000 (“FOIA”) seeking disclosure of the Developer Remediation Contract entered into between the Secretary of State and Barratt Developments PLC. The request was framed in broad and comprehensive terms, seeking “the entire contract” together with “all appendices, addendums etc” and “any further documentation which forms a part of the contract”. As the Tribunal has already noted, that formulation, taken at face value, is apt to encompass the entirety of the contractual material forming part of the relevant arrangements between the Government and the developer.

9. The request was made in the context of the Government’s programme for the remediation of residential buildings affected by fire safety defects, implemented in the aftermath of the Grenfell Tower tragedy. A standard or pro forma version of the Developer Remediation Contract had been placed in the public domain. However, the [APPELLANT] made clear within his request that the published version did not include information of direct and practical significance to leaseholders. In particular, he identified the absence of information concerning the buildings to which the contractual arrangements applied and the “timespan for repairs”. The request was therefore directed not merely to the abstract contractual framework, but to the operational detail contained within the appendices and associated material, including information capable of identifying affected buildings and the progress of remediation.

10. The second respondent initially refused the request relying upon section 38 FOIA (health and safety), subsequently supplemented by reliance upon section 40 FOIA (personal data). The [APPELLANT] sought an internal review of that decision on 13 August 2023. In the course of doing so, he used the following language: “In any case it would serve my purposes if the names of the buildings in any response were redacted apart from one which is Centenary Plaza…” 11. That correspondence gives rise to a central issue in this appeal. The [APPELLANT] contends that, at the internal review stage, he thereby refined or limited his request so that it was, in substance, directed to information concerning a single building, namely Centenary Plaza. The second respondent disputes that characterisation, maintaining that the request was not reformulated and remained one of general scope, seeking contractual material across all buildings. The proper construction of the request, including the significance of this passage, is therefore a matter in dispute between the parties and lies at the heart of the Tribunal’s analysis.

12. Following the internal review, the second respondent maintained its refusal dated 19 September 2023. In that response, the following wording appears: “In respect of your revised request to see only the data relating to Centenary Plaza…” 13. The Tribunal notes that the use of the expression “revised request” is capable, at least superficially, of suggesting that the request had been altered or narrowed. However, the significance of that wording must be assessed in the context of the correspondence as a whole.

14. The second respondent’s subsequent communications, dated 18 January 2024, further illuminate its position. In particular, it stated: “The risks in disclosing data relating to Centenary Plaza was considered such that it was possible to disclose that for your Internal Review – however; as you now maintain that you want all of the information on the list disclosed to you, it would not be feasible…” This passage indicates that the second respondent, at least at one stage, distinguished between disclosure limited to “data relating to Centenary Plaza” and disclosure of “all of the information”. It also indicates that disclosure on the more limited basis had in fact been considered, though ultimately not pursued. The implications of that distinction form part of the Tribunal’s later analysis.

15. The [APPELLANT] subsequently complained to the Information Commissioner under section 50 FOIA. During the course of the Commissioner’s investigation there was a material shift in the basis upon which the request was resisted. The second respondent withdrew its reliance on sections 38 and 40 FOIA and instead relied upon section 14(1), on the basis that compliance with the request would impose a grossly disproportionate burden, in a decision dated 18 January 2024.

16. The second respondent’s case before the Commissioner, and as maintained before this Tribunal, is that the material falling within the scope of the request comprises a substantial dataset, including appendices identifying a large number of buildings covered by the contractual arrangements. It contends that this dataset comprises many hundreds of entries, initially estimated at approximately 1,400 and subsequently refined to approximately 750 buildings. It further contends that the information is not held in a form which permits straightforward extraction or disclosure, and that meaningful compliance would require an individualised, building-by-building assessment.

17. That exercise, it is said, would involve consideration of the applicability of exemptions, the status of remediation works, and in some cases the need for consultation. On that basis, the second respondent estimated that even an initial assessment would require approximately five minutes per building, producing an estimated burden of at least 62.5 hours. It is that assessment of burden which underpinned the reliance on section 14(1).

18. The Commissioner accepted that analysis. In a Decision Notice dated 18 March 2024, the Commissioner concluded that the burden of complying with the request, when balanced against the purpose and value of the information sought, was sufficient to render the request vexatious within the meaning of section 14(1) FOIA.

19. The [APPELLANT] appeals against that conclusion. In his grounds of appeal and subsequent submissions, he contends, in summary, that the second respondent should not have been permitted to alter the basis of refusal during the Commissioner’s investigation so as to rely upon section 14(1), and that the reliance on that provision is in any event misplaced. Central to his case is the contention that his request had, by the internal review stage, been limited in substance to Centenary Plaza, such that the reliance on a large dataset and the corresponding assessment of burden is misconceived. He further contends that the information sought could in any event be disclosed through the application of redactions, particularly in respect of personal data.

20. In a letter dated 19 March 2024, the Commissioner stated that although the [APPELLANT] did refine his request “ slightly ”, he did not refine his request to ask for the information about Centenary Plaza only.

21. The Commissioner, in his Response, resists the appeal and maintains the reasoning set out in the Decision Notice. He relies upon the established principles governing section 14(1), including the proposition that a request may properly be characterised as vexatious by reason of burden alone, notwithstanding the existence of a legitimate public interest in the information and also the lawfulness of late reliance on s.14(1). He maintains that the Decision Notice correctly proceeded on the basis that the request remained broad in scope.

22. For its part, the second respondent maintains that position. It contends that the reference to Centenary Plaza does not amount to a reformulation of the request but instead reflects the [APPELLANT]’s particular interest within a request that remained general in scope. It reiterates that compliance would require a resource-intensive assessment across all buildings falling within the contractual framework, and that section 14(1) is properly engaged on that basis.

23. Accordingly, the appeal comes before the Tribunal against the background of competing positions. The [APPELLANT] contends that the request was effectively confined, in substance, to a single building and that the reliance on section 14(1) is flawed. The second respondent and the Commissioner maintain that the request remained broad in scope and that compliance would impose a disproportionate burden. It is against that background that the Tribunal turns to consider the applicable legal framework and the issues arising for determination.

24. For the purposes of determining this appeal, we have considered those documents contained within the updated bundle consisting of 128 (electronic) pages, the authorities bundle consisting of 118 (electronic pages), the second respondent’s skeleton argument (5 electronic pages) and the oral submissions made during the course of the hearing. We note that the ICO did not send a representative to the hearing but instead relied on their written submissions. Preliminary Matters 25. The Tribunal had regard to the case management order dated 4 November 2024 made by Judge Buckley. That order included a direction pursuant to rule 14(6) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 in respect of certain information contained within a closed bundle. The direction provided that such material was to be disclosed to the Tribunal but not to any other party and further recorded that the position would be subject to review at the substantive hearing.

26. In accordance with that direction, the Tribunal has undertaken a fresh and independent assessment of the status of the material contained within the closed bundle. The Tribunal does not proceed on the basis that the earlier direction is determinative. Rather, it has considered, for itself, whether continued restriction on disclosure is justified, having regard to the nature of the material, the interests said to be engaged, and the requirements of fairness and open justice.

27. The Tribunal is satisfied that the closed bundle contains information which is said by the second respondent to engage exemptions under Part II FOIA, and which in substance reflects the types of information relied upon in support of its case, including material relating to the contractual arrangements and the dataset said to fall within scope of the request. The Tribunal further accepts that disclosure of that material, without restriction, would be liable to prejudice the interests which those exemptions are designed to protect.

28. In those circumstances, the Tribunal is satisfied that a restriction on wider disclosure remains justified. However, it emphasises that such restriction is justified only to the limited extent strictly necessary to secure the protection of those interests. In accordance with established principles governing the use of closed material, the Tribunal has approached the issue on the basis that any departure from the requirements of open justice must be both necessary and proportionate.

29. At the same time, the Tribunal has been satisfied that the issues arising in this appeal are capable of fair determination on the basis of the open material, supplemented, where necessary, by such limited reference to the closed material as is required for the Tribunal’s own evaluative purposes. The essential matters in dispute—namely the scope of the request, the application of section 14(1), and the assessment of burden—have been fully ventilated in open evidence and submissions.

30. The Tribunal has therefore taken care to ensure that no reliance is placed, in these reasons, upon any material the substance of which has not been disclosed to the [APPELLANT]. To the extent that the Tribunal has had regard to matters contained within the closed bundle, it has done so only at a level of generality which does not risk disclosure of protected information, and only insofar as necessary to test and evaluate the evidence of the second respondent.

31. In those circumstances, the Tribunal is satisfied that the adoption of a closed procedure does not give rise to any unfairness to the [APPELLANT] and that it is neither necessary nor appropriate to issue a separate closed judgment. All matters material to the Tribunal’s decision are contained within these open reasons. Legal Framework The statutory right of access and the Tribunal’s jurisdiction 32. FOIA establishes a general right of access to recorded information held by public authorities, subject to the application of statutory exemptions and procedural provisions contained within the Act . The central provision is section 1(1) , which provides: “Any person making a request for information to a public authority is entitled— (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) if that is the case, to have that information communicated to him.” 33. Section 1(1) thus creates both a right to be informed whether information is held, and, if so, a right to have that information communicated. That right is not absolute. It is qualified by the exemptions contained within Part II FOIA, and by other provisions of the Act , including section 14 , which relieve a public authority of the obligation to comply with certain categories of request.

34. The statutory scheme provides for the independent supervision of the exercise of those rights by the Information Commissioner. Where a complaint is made, the Commissioner must issue a decision notice under section 50 FOIA determining whether, in any specified respect, the public authority has complied with the requirements of the Act .

35. By section 57(1) FOIA, “ where a decision notice has been served, the complainant or the public authority may appeal to the Tribunal against the notice .” The Tribunal’s jurisdiction on such an appeal is defined by section 58 FOIA. That provision requires the Tribunal to consider whether the Decision Notice is in accordance with the law and, where the Commissioner has exercised a discretion, whether that discretion ought to have been exercised differently.

36. In carrying out that task, the Tribunal exercises a full merits jurisdiction. It is not confined to reviewing the reasonableness of the Commissioner’s conclusions, but is entitled, and indeed required, to make its own findings of fact and to reach its own conclusions of law on the evidence before it. The Tribunal may therefore substitute its own decision where it concludes that the Decision Notice is not in accordance with the law.

37. However, that jurisdiction is anchored to the subject matter of the Decision Notice. The Tribunal’s task is to determine the lawfulness of the Decision Notice in respect of the request which was before the Commissioner. It is not to determine different or hypothetical requests, nor to substitute a materially different factual basis for that which was before the Commissioner. That limitation is of particular importance in cases, such as the present, where the proper construction and scope of the request are themselves in issue. Section 14 FOIA 38. Section 14(1) FOIA provides that section 1(1) does not oblige a public authority to comply with a request for information if the request is vexatious. The term “vexatious” is not defined exhaustively within the Act , and its application depends upon an evaluative judgment in light of all the circumstances of the case.

39. It is well established that the concept of vexatiousness is broad and flexible, and is directed to the protection of public authorities, and the effective operation of the FOIA regime, against demands which impose unjustified or disproportionate burdens. The assessment under section 14(1) requires consideration of all the relevant circumstances: see   Dransfield v Information Commissioner   [2015] EWCA Civ 454 .

40. Among the factors which may be taken into account are the volume of information sought, the complexity of the task required to comply, the resources which would need to be deployed, and the impact upon the authority’s ability to discharge its other functions. The purpose and value of the request may also be relevant. The assessment ultimately involves a balance between these competing considerations.

41. It is further recognised that, in an appropriate case, the burden of compliance may be sufficient, of itself, to render a request vexatious: see   Craven v Information Commissioner   [2015] EWCA Civ 454 and   Cabinet Office v Information Commissioner and Ashton   [2018] UKUT 208 (AAC) . However, such a conclusion must be reached following a proper evaluative exercise based on the circumstances of the case.

42. The application of section 14(1) therefore requires an assessment of the burden of complying with the request as properly understood. Where there is a dispute as to the scope or meaning of the request, that issue must be resolved as part of the Tribunal’s fact-finding exercise before the evaluation required by section 14(1) can be carried out. Section 16 FOIA: advice and assistance 43. Section 16(1) FOIA provides: “It shall be the duty of a public authority to provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to persons who propose to make, or have made, requests for information to it.” 44. The purpose of that provision is to facilitate the effective operation of the right of access by ensuring that requesters are assisted, so far as reasonably practicable, in identifying and obtaining the information which they seek.

45. The duty under section 16 does not require a public authority to rewrite a request or to treat it as something fundamentally different from that which was made. However, it forms part of the statutory framework within which requests are handled and may, where relevant, provide context for understanding the interaction between the parties.

46. In the present appeal, section 16 is not determinative of the outcome but forms part of the statutory background against which the issues fall to be considered. Summary 47. In summary, the Tribunal must determine whether the Decision Notice is in accordance with the law in respect of the request before the Commissioner, exercising a full merits jurisdiction. In doing so, it must assess the application of section 14(1) by reference to the request as found as a matter of fact, taking into account all relevant circumstances, including the burden of compliance.

48. It is against that legal framework that the Tribunal turns to consider the issues arising for determination in this appeal. The Proper Construction and Scope of the Request 49. The first substantive issue for determination is the proper construction and scope of the request to which the Decision Notice relates. The resolution of that issue is of central importance to this appeal, since the application of section 14(1) FOIA necessarily depends upon a correct understanding of the request to which it is said to apply. It is axiomatic that the evaluative exercise required by section 14(1) must be directed to the request as properly understood, rather than to an abstract or mischaracterised version of it.

50. The Tribunal begins with the terms of the request itself. As set out above, the request made on 19 April 2023 was framed in broad and comprehensive language, seeking “the entire contract” together with “all appendices, addendums etc” and “any further documentation which forms a part of the contract”. Read in isolation, that wording is capable of encompassing the entirety of the contractual material between the second respondent and Barratt Developments PLC, including appendices identifying buildings and setting out the progress of remediation works.

51. The Tribunal accepts that, as a matter of language, the request is wide in scope. However, it does not follow that the exercise of construction required for the purposes of FOIA is confined to a purely literal reading of that wording. It is well established that a request must be interpreted objectively, having regard not only to the words used but also to the context and the surrounding circumstances in which it was made and pursued. In Dransfield v Information Commissioner [2015] EWCA Civ 454 , the Court of Appeal emphasised that the application of section 14 requires consideration of all the relevant circumstances and an assessment of the request in its real-world context. That approach underscores that the Tribunal’s task is to identify the substance of what the requester was seeking, rather than to adopt an artificially rigid or technical reading of the language used.

52. In the present case, the Tribunal considers that the subsequent correspondence between the parties, and in particular the exchanges at the internal review stage, form an important part of that context. Following the refusal of his request, the [APPELLANT] stated: “ In any case it would serve my purposes if the names of the buildings in any response were redacted apart from one which is Centenary Plaza…” 53. The Tribunal accepts that this statement does not, in its terms, purport to withdraw or replace the original request. It is expressed conditionally and framed as an indication of what would satisfy the [APPELLANT] rather than as an unequivocal reformulation or substitution of the request. In those circumstances, and consistent with the statutory scheme, the request which fell to be determined by the Commissioner remained, as a matter of form, the request made on 19 April 2023.

54. However, the Tribunal considers that this correspondence is nonetheless of considerable significance. While it does not alter the formal scope of the request, it provides a clear indication of the [APPELLANT]’s practical focus, namely information relating to a particular building, Centenary Plaza, and of his willingness to accept disclosure structured on that basis, subject to redaction. It therefore sheds light on the substance of the request as it was being pursued and the outcome which the [APPELLANT] was seeking to achieve in practice.

55. That conclusion is reinforced by the second respondent’s own response at the internal review stage, which referred to a “ revised request to see only the data relating to Centenary Plaza ”. The Tribunal does not consider it necessary to determine whether that language is properly to be characterised as recognising a formal variation of the request. What is material is that it evidences an understanding, on the part of the public authority itself, that the request could be viewed and addressed by reference to a more focused body of information.

56. The position is further illustrated by the second respondent’s subsequent statement that: “ The risks in disclosing data relating to Centenary Plaza was considered such that it was pos