Commissioners in denial

Two high profile public figures suffered an embarassing defeat in Barnsley Law Courts this week.

Elizabeth Denham, a Canadian ‘expert’ brought in last year to head up the troubled Information Commissioner’s office (ICO) and Julia Mulligan, the disaster-prone Police and Crime Commissioner for North Yorkshire (NYPCC).

Elizabeth Denham (left) and Julia Mulligan (right).

At a First Tier Tribunal hearing held in the iconic South Yorkshire town, an information rights appeal lodged by journalist Neil Wilby was upheld.

The Tribunal, chaired by Judge David Farrer QC, with experienced panellists, Jean Nelson and Henry Fitzhugh, alongside, found that both Commissioners were wrong to rely on a ‘neither confirm nor deny’ (NCND) response to an information request made to NYPCC, by Mr Wilby, in August, 2016.

The request principally concerned information regarding litigation costs associated with a civil court claim brought by Mr Wilby, against NYPCC, in June 2016.

The claim, citing Data Protection and Freedom of Information Act (FOIA) breaches by NYPCC, succeeded at a final hearing in February, 2017. The journalist was awarded nominal damages and costs.

A complaint to the ICO, by Mr Wilby in October, 2016, eventually resulted in a Decision Notice (FS50652012) which upheld the NCND position, but on a different exemption under FOIA: Section 45(5)(a), instead of 45(5)(b) as relied upon by NYPCC.

The ‘investigation’ by the ICO’s caseworker, Carolyn Howes, has been the subject of withering criticism. As has the handling of a so-called internal review of the information request, and the conduct of the defence of the appeal, by NYPCC solicitor, Ashley Malone. The latter was also a witness for NYPCC in the civil claim successfully brought against her employer by Mr Wilby.

The Panel made its finding on the crucial NCND point during the Tribunal hearing, but the full judgment on the appeal has been reserved, pending written submissions from the ICO. Who sent a young, talented, but relatively inexperienced barrister to court, Elizabeth Kelsey, without instructions to deal with the matters that were plainly in issue. She was unable, therefore, to make oral submissions on other exemptions relied upon by NYPCC’s counsel, Alex Ustych, once the cloak of NCND had fallen away (sections 32, 40 and 42 of the Act for the FOIA ‘nerds’). The Panel found that section 32 could not apply, in any event.

Miss Kelsey was fortunate to be before an arbiter as benevolent (and worldly wise) as Judge Farrer. She will, no doubt, learn from the experience. In other jurisdictions she would have been sent away with a flea in her ear.

There was also learning to be had for Mr Ustych: Knowing where, and when, not to flog a dead horse. Whilst his persistence was admirable, trying to teach David Farrer QC ancient law was not.

It was not a good day for the two high profile public servants, in truth. Particularly, as it was revealed in open court that instructions given to both of their barristers was ‘to concede nothing’. Those instructing Miss Kelsey and Mr Ustych might also bear in mind that information rights tribunals are inquisitorial, rather than adversarial. Not a good look for either Commissioner, it must be said, as tens of thousands of pounds of public funds have been wasted. With more to follow, no doubt.

Not one word of apology has been given to Mr Wilby over the significant expense he has been put to and the enormous amount of unnecessary time he has spent dealing with a quite ludicrous, and entirely disproportionate, approach to this appeal by both Commissioners.

Both Ms Denham and Mrs Mulligan have been approached for comment on this article. Neither even acknowledged the email c arrying the invitation.

Which doesn’t sit well with this quote, reproduced from the Information Commissioner’s blog on her website: “And that’s where transparency comes in. People have a right to know how their services and communities are run. And in an era when people are increasingly looking for answers, protecting this right to Freedom of Information (FOI) is a crucial part of my job”.

Or with instructions to her barrister to ‘concede nothing’. It might also be connected to the fact that Ms Denham’s new deputy is James Dipple-Johnstone, a former leading light with another discredited regulator, the Independent Police Complaints Commission – and with whom Mr Wilby has had a number of running battles in his justice campaigner role.

As for Mrs Mulligan, who was a marketing strategist in a former life, she simply staggers from one crisis to another – and no amount of spin can conceal the ever widening cracks in her reputation as an effective elected representative.

 

Page last updated Saturday 14th October, 2017 at 1620hrs

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