Information rights ‘watchdog’ vexed by recent Tribunal findings

For a journalist to pursue her, or his, craft productively, one of the most important tools in their workbox is the ability to make effective requests under the Freedom of Information Act, 2000.

Public authorities are obliged to consider requests, make searches within their own records and then decide, if the information is held by them, whether, and in what form, disclosure can be made ‘to the wider world‘, not just the journalist, or member of the public, making the request.

There are a number of exemptions upon which a public authority can rely, under the Act, to avoid disclosing information. Two of the most common being personal information (section 40) and over cost (section 12).

If a requester is not satisfied with the response of the public authority, the first step is to ask for another officer to consider the request afresh. That process is called an ‘internal review’. Very often, the outcome is the same after review and the only remaining recourse is by way of a complaint to the statutory regulator, the Information Commissioner’s Office (ICO). This will involve considerable delay, and the general quality of caseworking is widely regarded as below the expected standard. Their ‘investigations’ are carried out under a veil of secrecy and, in my own extensive experience as an information rights practitioner, too often the ICO simply accept whatever the public authority tells them, however implausible their submissions may seem.

Another exemption that has become ever more frequent over past few years is section 14 of the Act, vexatious or repeated requests. The oft-quoted test case concerned a democracy campaigner, Alan Dransfield, and Devon County Council, and ended before the court of appeal in 2015 (a subsequent permission appeal was refused by the Supreme Court).

The decision by the higher court, in effect, gave public authorities greater licence to avoid answering unwelcome information requests, and dismiss them as ‘vexatious‘. Once labelled as such, a requester can subsequently encounter great difficulty in having his, or her, requests considered by that public body, irrespective of merit and public interest arguments.

It is true to say that the ICO, having spent a very considerable amount of public funds pursuing the Dransfield case through three court tiers (the First Tier Tribunal and the Upper Tribunal being the other two), adopted the appellate court finding, in their favour, with particular relish. The support for public authorities, in this way, has bordered on the ludicrous in some cases in my own professional knowledge.

However, very recently the tide may well have turned back in favour of requesters, and the information rights ‘watchdog’ put back on its leash.

Two First Tier Tribunal appeals, decided within two months of one another, both resulted in ICO Decision Notices, upholding section 14 exemptions, being overturned (the legal terminology is ‘disturbed’).

The first, Paul Arnold -v- ICO and Department of Business and Energy (EA/2018/0061) was heard before Judge Stephen Cragg QC [1] and two lay panel members in July 2018.

The second, Roger Good -v- ICO and Sedgemoor District Council (EA/2017/0228) was heard before Judge Brian Kennedy QC [2] and, by a quirk of fate, the same two lay panel members as heard the Arnold appeal.

In the Arnold appeal the key parts of the judgment are set out here:

[22] In this case we are of the view that the Commissioner has wrongly labelled the Appellant’s request of 22 June 2016 as vexatious. We should say first of all that it may well be that the Appellant has been overly persistent over the years, that it may well be that continuing to try to persuade the Department to take action is now futile, and it is certainly the case that there have been occasions when the Appellant has used aggressive and abusive language to which officials should not be subjected.

[23] Additionally, we accept that it is right to look at the current request in the context of the almost 20 years of correspondence and contact (including a number of FOIA requests) which the Appellant has generated.

[24] But we do remind ourselves that we have to take all the circumstances surrounding the request into account, and that having done so we have to find that it is the request (and not the requester) that is vexatious.

[27] We should emphasise that our decision is based on the particular nature and circumstances of this request. Our decision does not mean that the Department would be necessarily be unsuccessful in relying on s14 FOIA if further requests are made by the Appellant in pursuing the issues which are important to him. As the case-law set out above demonstrates, the decision on each FOIA request has to take all the circumstances in relation to that particular request into account, when considering whether it is vexatious.

In the Good appeal these are identified as the key passages in Judge Kennedy’s findings:

[27] The Tribunal was provided with correspondence sent to the Commissioner, in which the Council laid out it’s reasoning as to why it considered the request to be vexatious. In it the Council confirmed that it had not sought clarification about the scope of the request, nor conducted any investigations into whether it was a repeat request. It explained that the Appellant had previously been warned that further requests for information would be considered vexatious, and the request itself appeared to be a ‘fishing’ expedition designed to damage the Council.

[28] A letter from the public authority dated 7 July 2017 was effectively a pre-warning that any further request would be regarded as vexatious and pre-empted the necessary assessment of the request.

[29] The Tribunal notes that there was no attempt by the Council to establish whether this was actually a repeat request. Page 96 of the Bundle before us demonstrates there was no reasoning to establish this is a repeat request. In fact, on the evidence before us, the Tribunal believes that the subject request is a fresh request.

[30] We do not concur with the Commissioner’s assertion that this request has no value. In fact we find it is a request that has value and on a specific subject which, on the evidence before us, has not been the subject of a previous request.

[31] The Tribunal accepts the request has value because the subject is correspondence relating to a specific planning application. We have heard the Appellants personally explain the detail and we are persuaded there is value to this request. He refers to information provided by the LGO to the Appellant at page 581 of the Bundle before us, which appears to reveal that specific instructions to delay the process of investigating the breach of planning control leading ultimately to the grant of permission were given by a planning officer at the Council. It appears this information was not supplied by LGO with the letter that is at page 130 of the Bundle before us. The Council did not provide it to the Appellant. It may provide information that would support a complaint, justify litigation or even end the need for further requests from the Appellant, or others in the circumstances of this subject matter.

[32] It is in the public interest that any possible fault on the part of the public authority in dealing with this planning issue is fully explored. Even though the decision in Dransfield suggests that an authority does not need to consider every part of a request in certain circumstances, we find that this case is not such as would fall into that category. On the evidence before us we do not accept that the request was “manifestly unreasonable”.

It should be noted that First Tier Tribunal judgments are not binding authorities, but the fact that, in these particular cases, the two judges were widely experienced, very highly rated QC’s will, no doubt, raise eyebrows at the ICO, and in public authorities up and down the country.

Journalists, seen as very much ‘the enemy‘ in my own specialist field of challenging policing bodies, can also take heart from these judgments – and live in hope that a more balanced view will be taken by the watchdog when assessing complaints against public authorities that have simply resorted to a ‘vexatious‘ label as a means to avoid deeper scrutiny of malpractice and wasteful use of public funds.

The only public body to label me ‘vexatious‘ – the joint Civil Disclosure Unit of North Yorkshire Police and its Police Commissioner – face me at a Tribunal hearing early next next year. On advice from my barrister, I was quietly confident of overturning the ICO’s Decision Notice before these latest Tribunal findings. Now that confidence has grown further.

I defeated the same Civil Disclosure Unit at a Tribunal hearing in September, 2017 (EA/2017/0076). But that concerned a section 40 exemption, not section 14. Heard before David Farrer QC and two lay panel members at Barnsley Magistrates Court, Elizabeth Kelsey of counsel represented the ICO and Alex Ustych appeared for the North Yorkshire Police Commissioner (NYPCC).

I have also succeeded against NYPCC in a county court claim over data protection breaches.

Page last updated Wednesday 24th September, 2018 at 2120hrs

[1] Stephen Cragg QC. Doughty Street Chambers bio: https://www.doughtystreet.co.uk/barristers/profile/stephen-cragg-qc

[2] Brian Kennedy QC. 4 KBW Chambers bio: http://www.4kbw.co.uk/members/brian-kennedy-qc/

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Information rights ‘watchdog’ vexed by recent Tribunal findings

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