Council reveal their detachment from controversial information rights tribunal

Legal Bundle - stock pic

A recent information access request to Oldham Metropolitan Borough Council has produced another surprising revelation from a public authority that appears not to take the relevant statutory framework, and matters flowing from it, at all seriously enough.

Indeed they were exposed within the past three months as deceiving a local politician in order to frustrate his access request (read more here). Other enquiries from this quarter, writes Neil Wilby, have much delayed internal review requests and issues flowing from them still extant.

It highlights two business areas to which interim chief executive, Harry Catherall, needs to apply particular attention: Information Management and Legal Services. 

On 12th October, 2021 this communication was posted on the iconic What Do they Know website:

“Please disclose, by way of the Freedom of Information Act, 2000 (the Act), a pdf copy of the electronic hearing bundle filed and served in the above appeal and in which Oldham MBC were second respondent”.

It was acknowledged by the Council on the same day.

Just eight days later, on 20th October, 2021, they provided a substantive response, or finalisation to use the correct jargon:

“The information that you have requested is not held by Oldham Council. You may wish to contact the Information Commissioners Office, as the organisation that filed and served the requested bundle. 
 
“Information Access Team

(icoaccessinformation@ico.org.uk)
Reference IC-39314-R6Q9 
Information Commissioner’s Office 
Wycliffe House, Water Lane 
Wilmslow SK9 5AF “

As referred to above, and in the linked article, the Information Management team at OMBC are, generally, helpful and pleasant, but not too hot on precision in terms of the the Act and its specific requirements. In strict terms, the response should have indicated that it was a refusal under section 17 of the Act and offered details as to how to complain about the decision.

Nevertheless, an internal review request under section 45 of the Act was submitted to the Council in these terms on 21st October, 2021:

“I am writing to request an internal review of Oldham Metropolitan Borough Council’s handling of my FOI request ‘First Tier Tribunal (Information Rights) EA/2021/0106’.

“Firstly, thank you for the prompt response.

“Secondly, it may assist your Council (and What Do They Know readers and users) to know that I have been involved in five appeals to the General Regulatory Chamber – First Tier Tribunal (Information Rights) to give it its full title. Often shortened to FTT. Three were decided at hearings, at one I succeeded, in two the appeals were not upheld (one later appealed to the Upper Tier Tribunal (UTT)). The other two were decided on the papers as the matters had become stale.

“Furthermore, I have been adjacent to a large number of other FTT and UTT appeals, and hearings, in the course of my duties as a journalist. It can, therefore, be taken as read that I am very familiar with Tribunal Procedure Rules (TPR) and how and when, mostly formulaic, Case Management Directions are given to the parties by the Registrar. Particularly, in relation to preparation, filing and service of the hearing bundle. Invariably, the responsibility of the Information Commissioner’s Office when the appellant is a lay litigant (as is the case here).

“In the instant appeal, over which materials are sought to be disclosed, a well known, indeed notorious, political activist, Raja Miah, was appellant, the Information Commissioner was the First Respondent and OMBC the Second Respondent. That much is very clear from Judge Cragg QC’s opening remarks at the CVP remote hearing, at which I was present and made the usual reporter’s notes.

“It is trite that in any court proceedings an elemental part of the route to trial or final hearing is correct filing of documents with the court and the service upon non-filing parties. The FTT is no different in this regard. Indeed, in my extensive experience the FTT Registrar could be fairly described as a procedural tyrant.

“It would, therefore, strike a neutral observer that it is most unlikely that a dispensation would be given in the subject appeal for the Information’s Commissioner’s Office not to serve a hearing bundle on its fellow respondent, OMBC.

“Moreover, in a matter that would have, and, indeed, already has, far reaching consequences, that OMBC were so detached from it that they did not even receive a trial bundle, even for no other purpose then checking that everything was in order from their side, ahead of a hearing at which they would not be represented by counsel, would strike an independent observer as highly questionable..

“It is public knowledge that the Council elected not to be represented [legally] at the hearing. But, as the judge explained to the others present at the hearing, not too much should be read into that. The application of resources to these type of hearings is a commercial decision for public authorities to take and not at all unusual. What is out of the ordinary, if the Council’s response to this information request is to be taken at face value, is the apparently studious disinterest in the final stages of tribunal proceedings.

“In sharp contrast to the Council’s apparent laissez faire approach, and for his part, Mr Miah has described, with familiar hyperbole it has to be said, the upholding of the appeal by the Tribunal as ‘a victory over tyranny’ and one that ‘will be talked about for years to come’. His supporters, a vociferous group self-styled as ‘The Rabble’, are calling for a marble, bronze – or even solid gold – statue of him to be erected in a prominent location in Oldham to mark this and other claimed successes in holding your Council to account.

“I will, of course, be asking both the Information Commissioner’s Office and the General Regulatory Chamber relevant questions regarding the Case Management Directions and, in particular, relating to service of documents on the two respondents. That is a function of my vocation as an investigative journalist and no imputation of any wrongdoing at all, by any officer, or Member, of OMBC is asserted or remotely implied by the making of such routine enquiries. Genuine mistakes and/or misunderstandings can take place in large organisations. That is a fact of life and much the most likely scenario here.

“Accordingly, this internal review request is focused on the single issue of whether renewed searches for the hearing bundle, within the relevant business area, would bring about a different outcome. A new, collateral access request is also made, to run alongside this review, for copies of all the Case Management Directions served on OMBC in the subject appeal (EA/2021/0106) together with the skeleton argument of Mr Miah, filed and served in the appeal, which, from the remarks made by Judge Cragg QC during the hearing, may have been produced after the hearing bundle was filed and served”.

An acknowledgement from the OMBC Legal Services Department was received the following day confirming that they had accepted the request and that a response would be provided ‘in due course’. Section 45, and the Information Commissioner’s (ICO) Guidance both recommend that public authorities finalise such requests within 20 working days. The long-serving Borough Solicitor, Paul Entwistle, tends to ignore that.

On 29th October, 2021 the council’s Information Management team made a further reply by helpfully distilling, and not for the time, what are considered to be new requests for disclosure under the Act and outside of the scope of the internal review request.

“Collateral access request for copies of all the Case Management Directions served on OMBC in the subject appeal (EA/2021/0106) together with the skeleton argument of Mr Miah, filed and served in the appeal, which, from the remarks made by Judge Cragg QC during the hearing, may have been produced after the hearing bundle was filed and served.”

“As such, this may take up to 20 working days to be processed and has been passed on to an appropriate officer”.

The appropriate officer is, of course, the same Borough Solicitor, or his assistant, Colin Brittain. The response of either is awaited with great interest. On any independent view, and for any number of reasons, Oldham Council should have had a copy of the hearing bundle prior to the Tribunal sitting on 11th October, 2021.

Their present position is that they didn’t, but they have been given an open goal in terms of admitting that the initial response to the request for its disclosure was a genuine mistake. If, in the event, the hearing bundle wasn’t in the Borough Solicitor’s hands, or those of the person in his department dealing with the appeal, then there are some very serious questions to answer over competency and attention to detail. Which would be added to the tepid reasoning given to the ICO when defending Raja Miah’s complaint to the regulator and the fact that no representative from the Council was present, even as an observer, at the remote hearing. 

As already indicated to Oldham Council in the internal review request, other collateral freedom of information requests have been made to both Her Majesty’s Courts and Tribunal Service (read here) and the Information Commissioner’s Office (read here) on the same topic. In order to obtain a complete picture and to ensure that appropriate checks and balances are in place regarding further responses from the Council.

The judgment was expected to be handed down to the various parties to the appeal, including OMBC, around 21st October, 2021. It is expected to be published widely, including elsewhere on this website, during the early part of November, 2021.

Page last updated at 1725hrs on Sunday 31st October, 2021

Corrections: Please let me know if there is a mistake in this article. I will endeavour to correct it as soon as possible.

Right of reply: If you are mentioned in this article and disagree with it, please let me have your comments. Provided your response is not defamatory it will be added to the article.

Photo credit: ICO

© Neil Wilby 2015-2021. Unauthorised use, or reproduction, of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from, and links to, the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.

 

Published by Neil Wilby

Former Johnston Press area managing director. Justice campaigner. Freelance investigative journalist.

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