Information rights regulator faces moment of truth

Investigative journalist, Neil Wilby, takes on the Information Commissioner (ICO) in court this week in the first of four First Tier Tribunal hearings. A fifth appeal is set to be determined on the papers.

The hearing is listed for 10am on Thursday 28th September, 2017 in Court 4 at Barnsley Law Courts. A concrete carbuncle that blights the landscape of this finest of South Yorkshire towns.

It is a public hearing and, as such, open to anyone to attend. The venue, and the associated arrangements, for this showdown has been changed no less than FIVE times in the last two months, before being finally settled upon less than a week before the listed date.

Each change has been as a result of repeated challenges to listing notices by Mr Wilby. There have been two attempts to have the appeal heard in London, for example. When parties to the appeal are based in Wakefield, Wilmslow and Northallerton.

“Plain daft” as they would say in Barnsley.

The composition of the three strong Panel has not yet been disclosed to Mr Wilby. It usually comprises of one tribunal judge and two lay members.

Julia Mulligan, the troubled Police and Crime Commissioner for North Yorkshire (PCC), has been joined as a party to the action on application by the ICO.

The appeal, lodged with the Tribunal in May, 2017 concerns a freedom of information (FOI) request made to the PCC on 8th August, 2016. The request sought disclosure of information connected to a civil court case involving the PCC and Mr Wilby. That claim was filed in June, 2016 and eventually settled in February, 2017.

Mr Wilby’s claim against the PCC, brought in his role as a journalist rather than a private individual, succeeded. He was awarded nominal damages, and costs, on that very basis.

It was a bitterly contested action and the PCC spent a five figure sum defending a claim that could – and should – have been disposed of for a fraction of the sum it cost the taxpayer in the end.

The PCC’s principal tactic was, not for the first time, to smear a journalist who had exposed yet more governance failings both in the running of her office – and her routine lack of oversight of the police force in her area.

Disclosure of the requested information was refused on the grounds that the PCC ‘could not confirm or deny‘ (often shortened to NCND) that she held any information on the civil court case.

For the FOI ‘nerds’ the exemption relied upon was section 40(5)(b). It would be ‘unfair’ to disclose the information sought because it was ‘personal data’.

The PCC didn’t state whether sub-section (i) or (ii) applied. A failing she was to repeat when asked to review the outcome of the request. Which strongly suggested that no meaningful review ever took place. It is alleged to have been undertaken by an information rights solicitor working for the PCC, Miss Ashley Malone, who sat next to Mr Wilby in court for two of the three hearing days.

There is other collateral evidence that supports that proposition that no proper review ever took place. No materials relating to it were disclosed in a data subject access request that was finalised in April, 2017.

Following Mr Wilby’s complaint to the ICO, the PCC changed her mind and decided that she would rely on section 40(5)(a). This moved the goalposts insofar as disclosing the information would breach data principles but still maintained ‘NCND’.

The ICO then upheld that revised view in a Decision Notice (FS50652012) published on her website. She completely ignored representations made to her by Mr Wilby three weeks before the decision was made.

The so called ‘investigation’ undertaken by the ICO was, on any independent view, a charade. As many others have found in their dealings with her, this is not a regulator at all minded to go looking for evidence, or test some of the wilder assertions of public authorities when refusing information requests.

In the course of his own interaction with the Information Commissioner, a level of laziness, incompetence and deceit has been uncovered by Mr Wilby that simply beggars belief. This is ‘public service’ at its very worse – and the regulator has become very uncomfortable with the level of scrutiny under which she is now placed.

The hearing on Thursday will reveal some of the defects within the organisation. It will take several more hearings for the entirety of the failings now uncovered to be made public.

Since the first appeal was launched there have been THREE other exemptions introduced by the ICO (s43, s32 and s45(5)(b)(i)), and FIVE more by the errant PCC (s32, s40(1) and (2), s42(1) and (2)). Only ONE is common to both.

The sharp eyed might note that the ICO are now looking to rely on an exemption they persuaded the PCC to abandon in January, 2017.

In all truth, you couldn’t make it up.

Yet, each of the two respondents is due to turn up in Barnsley with barristers hired in from London; Elizabeth Kelsey (Monckton Chambers) for the ICO and Alex Ustych (5 Essex Court) for NYPCC – and, of course, an in house solicitor each, Nicholas Martin and the aforementioned Miss Malone.

Another complete waste of a lumpy five figure sum from the public purse, plus an incalculable amount of time and expense incurred by a freelance journalist simply trying to follow his vocation as a ‘public watchdog’. In the process, being messed around from pillar to post – and not just by his opponents either: The Tribunal has also failed to case manage appropriately and gives such leeway to the ICO, and to a lesser extent public authorities, that leaves the strong impression of lay litigants, pursuing information rights appeals, not being at all welcomed.

Miss Malone was, of course, Mrs Mulligan’s star witness in the civil claim in which her employer was soundly defeated by Mr Wilby. Her evidence bordered on the comical, within those proceedings, and certainly did not assist the PCC’s cause: For example, a police solicitor couldn’t explain to the court whether a chief constable was a controller, or processor, of data entered onto or extracted from the Police National Computer (PNC).

A second round of civil proceedings against Mrs Mulligan is presently in the course of preparation by Mr Wilby. They are even more strongly grounded than the first, and seem certain to succeed. Notwithstanding, the power-crazy PCC has already indicated, via another of her in-house solicitors, Jane Wintermeyer, that she will waste tens of thousands more public money in defending the indefensible.

With two more information rights tribunal hearings yet to be arranged, involving Mrs Mulligan and Mr Wilby, this is a story that will run for some time yet. With a little luck, it will end with the resignation of the errant, and profligate, Police and Crime Commissioner for North Yorkshire.

Both the Information Commissioner and the PCC were approached for comment on this article. Neither even acknowledged the email carrying the request.

 

Page last updated Wednesday 26th September, 2017 at 1920hrs

 

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