Tribunal hears belated claim that Council refused FOIA requests ‘because of ethnic background’

Screenshot 2021-11-11 at 20.27.04

On 11th October, 2021 an Information Rights Tribunal hearing, held remotely via the Court Video Platform (CVP), was the culmination of a bitter two year struggle between a disgraced Tameside-based political activist and the neighbouring Metropolitan Borough Council in Oldham that are the subject of his persistent and unpleasant on-line attacks.

Raja Miah, aged 48, from Mossley, Tameside has, for almost three years, been pursuing what he, himself, describes as a vendetta against the Labour-run administration in Oldham. His main targets have been three past and present Leaders of the Council: Jim McMahon, now MP for Oldham West and Royton, Sean Fielding, now a public affairs executive based in the Manchester office of BECG, a leading firm of practitioners across England, Scotland and Wales, and Cllr Arooj Shah, a very popular, heart on the sleeve politician, whose profile appears to be raised almost daily on the regional and national political stage.

Miah’s persistent and deeply unpleasant campaigning began shortly after he was exposed in the local, regional and national press over financial and safeguarding failings in connection with two free schools that he founded and ran, Creative Studio in Manchester and Collective Free Spirit in Oldham. The elected representative that exposed him, and sought remedy or closure for many of his constituents, is Jim McMahon (read more here).

Currently on extended police bail, which includes an overnight curfew, following a dawn raid on his home in July, 2020, during which he was arrested and questioned over suspicions of racially aggravated public order and malicious communications offences,  he strongly denies any wrongdoing either in connection with the free schools debacle or any criminal offences. He claims his arrest was ‘politically motivated’ (read more here).

The Tribunal hearing, albeit brief as the panel had, essentially, decided the matters on the papers at a meeting in the previous week, was not without drama: Miah, whose perpetual strapline is ‘Do Not Fear Them, Do Not Fear Any of Them’, objected to the presence of the author of this article, Neil Wilby, an accredited court reporter, saying he felt ‘apprehensive and intimidated’ by seeing a name on the list of remote participants down the left edge of his computer screen.

There is no speaking role for a journalist in such hearings, save on infrequent occasions where he, or she, may ask to address the court on matters such as reporting restrictions. Quite why such a self-styled fearless warrior, and leader of men, should be so concerned, in those circumstances, was not apparent at the time.

The judge, quite correctly, gave Miah’s misgivings short thrift after explaining that ‘open justice is a fundamental part of democracy in this country and, as such, Mr Wilby will remain in the hearing’.

Having now read the judgment, it is much more apparent why Raja Miah felt ‘apprehensive’ about a court reporter being present. Included in his submissions to the Tribunal, made at the eleventh hour by way of a skeleton argument, was the startling allegation that racism was at the heart of Oldham Council’s decision to refuse to answer his information access requests, some of which are now over two years old.

An allegation that formed no part of his complaint to the Information Commissioner’s Office in July, 2020, or the subsequent appeal to the General Regulatory Chamber (First Tier Tribunal) earlier this year. The evidence, such as it is, in support of that claim is that some white applicants, apparently four of them at the most, had requests dealt with by the Council whilst his were refused.

It was a classic Miah tactic, throw enough dirt and hope some will stick.

Whilst the judge was fully entitled to dodge the racism bullet, as the allegation did not form part of the ICO’s Decision Notice that was under challenge by Miah, an arbiter of the high standing of Stephen Cragg QC should, in all conscience, have disposed of the matter by way of an explanation, rather than simply let it lie on the file, as it were.

It is also noteworthy that it would be hard to find any Council in the country that works harder on inclusion and diversity than Oldham and, in so doing, acts robustly against racism in any of its forms. The concept that a Council, with a Cabinet that includes five Muslims out of its nine Members, would refuse information requests on the grounds of skin colour is almost too preposterous for words.

Those controversies apart, Miah succeeded in the appeal because of the crass incompetence of both Oldham Council and the ICO. Neither of whom were sufficiently robust, or precise, in articulating concerns about both the requests themselves, which mostly, if not all, support a series of wild, evidence-free conspiracy theories, and his wider, deeply offensive and harassing conduct towards council officers and Members, that, in 49 cases out of 50, would have seen the appeal dismissed.

From this quarter, it would seem that an appeal to the Upper Tier Tribunal would be futile as the Information Commissioner is stuck with poor submissions by Oldham Council in response to Raja Miah’s complaint and the resultant sub-optimal Decision Notice (read in full here).

The press office at the ICO confirmed on Tuesday, 16th November, 2021 that no appeal had been filed.

Earlier a spokesperson for Oldham Council had said: ” The Council has not lodged an appeal. The FOI requests were refused under section 14(1) of the Act, a decision with which the Information Commissioner agreed”.

The perpetually noisy Raja Miah, having had the judgment in his possession since 14th October, 2021 has made no announcement of the fact, whatsoever, on his Recusant Nine platform, probably realising the opprobrium that would very likely follow.

On the day of the hearing, and after the judge gave his ex-tempore decision, his supporters almost immediately called for a statue, in marble, bronze, or even solid gold, to be erected in the town’s Parliament Square to celebrate ‘a victory over tyranny that will be talked about for years to come’.

There was no mention of his racism claim in a series of ludicrously self-aggrandising posts that followed the Tribunal finding.

As with so much of The Man From Mossley’s hyperbole, the reality is very, very different: He has been exposed again as a desperate fantasist. There is no ‘tyranny’, just lack of diligence – and a failure to correctly apply the statutory framework and the relevant case law.

If the case is ‘talked about for years to come’, it will be over that ludicrous racism allegation made by him, not for anything even remotely close to a ‘victory over tyranny’.

Moreover, Raja Miah’s refusal to engage with the Oldham Strand of The Greater Manchester Mayor’s Child Sexual Exploitation Assurance Review has also received a wider public airing.

The claimed ‘dossier’ of evidence that he has consistently claimed to have over the past two years or more, supporting his core claim that a wide consortium of councillors, council officers, police, partner agencies covered up child sex abuse in exchange for Asian block votes, remains, mysteriously, under wraps (read more here).

This is the Tribunal judgment in full:

First Tier Tribunal
(General Regulatory Chamber)
Information Rights
Appeal Reference: EA/2021/0126V
Before
Judge Stephen Cragg Q.C.
Tribunal Members
Ms Rosalind Tatam
Mr Dave Sivers
Heard via the CVP platform on 11 October 2021
Between
Raja Miah
Appellant
and
Information Commissioner
Respondent

The Appellant represented himself
The Commissioner was not represented

DECISION AND REASONS

DECISION

1. The appeal is allowed.

MODE OF HEARING

2. The proceedings were held via CVP. The Appellant joined remotely. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way

3. The Tribunal considered an agreed open bundle of evidence comprising 212 pages.

BACKGROUND

4. Between 13 October 2019 and 27 January 2020 the Appellant submitted six items of correspondence (each containing a number of information requests and/or seeking answers to questions) to Oldham Council (the Council) relating to various subject matters including child sexual exploitation, officers’ registers of interest, the sale of public land, and General Election voting. The items of correspondence are set out in Appendix A to this decision.

5. The Council replied on 24 July 2020 and refused to comply with the information requests, citing section 14(1) FOIA which refers to vexatious requests, and said as follows:-

From the information supplied in your requests, it is believed that your requests for information have been designed to cause a disproportionate or unjustified level of disruption, irritation or distress to the services and staff of Oldham Council and has therefore been deemed to be a manifestly unreasonable and / or vexatious request.

In making this assessment, we have considered the Information Commissioner’s Office guidance which identifies factors to consider and these include some of the following: • Can the request fairly be seen as obsessive / persistent / repetitive? • Is the request harassing the authority or causing distress to staff? • Does it indicate a personal grudge towards a particular person(s)? • Does it use abusive and / or aggressive language? • Would complying with the request impose a significant burden / disproportionate effort? • Is the request designed to cause disruption or annoyance?

It has been noted that within your requests: • there are similar themes e.g. Glodwick Baths, sale of land at Alexandra Retail Park, Oldham Central Masjid, declarations of interest by Elected Members amongst others.

Some of these requests had initially been responded to already. • your use of language and tone plus the targeting of officers, not just in your requests, but in your social media / websites activity is not acceptable and has been raised with you. • your requests, although in the public domain via What Do They Know, are further publicised via your social media / websites and appear to be part of a campaign to discredit, annoy and disrupt the council and targeted individuals, as opposed to making a serious request for information.

6. The Appellant contacted the Commissioner to complain about the way the requests for information had been handled, and specifically that the Council was not entitled to apply section 14(1) FOIA.

THE LAW

7. Section 8(1)(c) FOIA provides that a request can only be valid if it ‘describes the information requested’.

8. The Commissioner’s guidance states that ‘…we are of the view that there has to be a low test for a description to meet the requirements of Section 8(1)(c)’.[1] In relation to ‘requests framed as questions’ (which appears to us to be relevant in this case) the Commissioner’s guidance states that:- A request in the form of a question will be valid under Section 8(1)(c) FOIA, provided it still describes distinguishing characteristics of the information, as in the examples below where the information is differentiated by its subject matter (sickness absence policy, overseas aid spending, and measures to tackle vandalism respectively); ‘Why has the Council changed its policy on sickness absence?’ ‘How much money did the department spend on overseas aid last year?’ ‘What is being done to tackle vandalism in the local park?’

9. Section 14(1) FOIA states that ‘section 1(1) [FOIA] does not oblige a public authority to comply with a request for information if the request is vexatious’. Vexatiousness is not defined in section 14 FOIA, but it is immediately noticeable that it is the request that must be vexatious and not the person making the request.

10. Amongst other things, the Commissioner’s guidance on section 14 FOIA states that it is designed to protect public authorities by allowing them to refuse any requests which have the potential to cause a disproportionate or unjustified level of disruption, irritation or distress. The Guidance also states that:- The context and history in which a request is made will often be a major factor in determining whether the request is vexatious, and the public authority will need to consider the wider circumstances surrounding the request before making a decision as to whether section 14(1) applies.

11. The approach to vexatiousness is based mainly around the case of Information Commissioner vs Devon County Council & Dransfield [2012] UKUT 440 (AAC). The emphasis on protecting public authorities’ resources from unreasonable requests was acknowledged by the Upper Tribunal (UT) in Dransfield when it defined the purpose of section 14 as follows: ‘Section 14…is concerned with the nature of the request and has the effect of disapplying the citizen’s right under Section 1(1)…The purpose of Section 14…must be to protect the resources (in the broadest sense of that word) of the public authority from being squandered on disproportionate use of FOIA…’ (paragraph10).

12. Also in Dransfield, the UT took the view that the ordinary dictionary definition of the word vexatious is only of limited use, because the question as to whether a request is vexatious ultimately depends upon the circumstances surrounding that request. The Tribunal placed particular emphasis on the issue of whether the request has adequate or proper justification. As the UT observed:- ‘There is…no magic formula – all the circumstances need to be considered in reaching what is ultimately a value judgement as to whether the request in issue is vexatious in the sense of being a disproportionate, manifestly unjustified, inappropriate or improper use of FOIA’.

13. Dransfield was also considered in the Court of Appeal (Dransfield v Information Commissioner and Devon County Council [2015] EWCA Civ 454) where Arden LJ observed at paragraph 68 that:- “…the emphasis should be on an objective standard and that the starting point is that vexatiousness primarily involves making a request which has no reasonable foundation, that is, no reasonable foundation for thinking that the information sought would be of value to the requester or to the public or any section of the public… The decision maker should consider all the relevant circumstances in order to reach a balanced conclusion as to whether a request is vexatious.’

14. The more recent UT case of Cabinet Office v Information Commissioner v Ashton [2018] UKUT 208 (AAC) made clear that s14(1) FOIA can apply purely on the basis of the burden placed on the public authority, even where there was a public interest in the request being addressed and where there was a ‘reasonable foundation’ for the request.

15. The case also confirmed the approach in Dransfield to the effect that the Tribunal should take a holistic approach, taking into account all the relevant factors, in order to reach a balanced conclusion as whether a particular request is vexatious: see especially paragraph 27 of the UT judgment in Ashton.

16. Further, the Commissioner has identified a number of ‘indicators’ which may be useful in identifying vexatious requests. These are set out in her published guidance and, in short, they include:- Abusive or aggressive language Burden on the authority – the guidance allows for public authorities to claim redaction as part of the burden Personal grudges, Unreasonable persistence, Unfounded accusations, Intransigence, Frequent or overlapping requests or Deliberate intention to cause annoyance.

THE DECISION NOTICE

17. The Commissioner’s decision notice is dated 15 April 2021. The Commissioner records that Appellant was of the view that the requests to seek information were in the public interest, and that this was particularly so in relation to those requests relating to child sexual exploitation, to which he considers the Council has attempted to subdue or hide related information. In relation to the Council the Commissioner records that:-

– 12. The Council considers that the requests represent an ongoing pattern whereby requests are made to raise the profile of the complainant’s various allegations of bias and corruption against council officers and councillors. These allegations have been contained in correspondence with the Council, and publicly on social media platforms such as Twitter, Patreon, and on the complainant’s own website. The Council further considers that, on these platforms, the complainant has evidenced an ongoing grudge against the Labour Party, councillors, and the trustees of Oldham Central Mosque.

– 13. The Council has referred the Commissioner to the previous requests made by the complainant on whatdotheyknow.com, and specifically those made on 18 May 2019, 18 May 2019, 5 July 2019, and the subsequent generation of further requests and correspondence following the Council providing responses under the FOIA. The Council considers that compliance with the requests refused under section 14 would generate further such requests and correspondence.

– 14. The Council has also referred the Commissioner to specific actions (including a Greater Manchester [police] commissioned ‘Independent Review’) that it has taken in response to historic failings by the Council in respect of safeguarding duties and child sexual exploitation. The Council has explained that whilst the Independent Review has attempted to engage with the complainant in respect of specific allegations that he has made (and evidence that he claims to hold), it has struggled to gain engagement. The Council asserts that it is committed to supporting the Independent Review, and that this was a factor in its decision to not apply section 14(1) at an earlier stage to the requests as they were being submitted.

18. The Commissioner specifically recognised that the issues raised by the Appellant are likely to relate to matters of public interest, and that it is important that such matters are subject to appropriate transparency by public authorities. The Commissioner states that the phrasing and contents of the requests ‘are likely to cause significant difficulties for the Council to issue responses under the terms of the FOIA’. This is because a significant number of the requests ‘do not clearly seek recorded information that may be held by the Council, but rather, ask the Council to provide statements that confirm either the complainant’s understanding of a subject, or whether a certain event has occurred’ (paragraph 18 of the Decision Notice).

19. The Commissioner states, therefore, that responding will be burdensome for the Council as it would need to provide extensive advice and assistance to the Appellant (under the duty imposed by section 16 FOIA) to clarify what, if any, recorded information is sought. The Commissioner makes two further points. The first is that she considers that ‘the provision of responses under the FOIA would be highly likely to generate further requests and related correspondence, which would of necessity, require further public resources to be expended’. The second is that, as three of the requests were made on a single day ‘it is reasonable for the Commissioner to interpret this action as having been taken to knowingly place a burden upon the Council’ (paragraph 24).

20. The conclusions of the Commissioner are as follows:-

– 26 …the evidence available to the Commissioner indicates that the complainant is failing to use the rights provided by the FOIA responsibly. The phrasing and content of the correspondence suggests that the intent of the requests is not simply to seek access to official information, but to raise and pursue various allegations in a public manner.  –  – 27. The Commissioner emphasises that the purpose of the FOIA is to provide a public access regime to official information; should a requestor hold concerns about the actions undertaken by a public authority, this should be escalated through the proper processes, e.g. the authority’s complaints process or the appropriate review body.

– 28. Having considered the purpose and value of the requests, the Commissioner is also not satisfied that the burden placed upon the Council – in attempting to comply with its duties under the FOIA – would be justified.

THE APPEAL

21. The Appellant filed an appeal dated 13 May 2021 and makes the following points:- (a) The Council does not like what the Appellant does with the information the Appellant obtains, but the Commissioner has not addressed this point. (b) The Commissioner was wrong to categorise the requests as requests for statements, and each request should be considered individually. (c) If the requests did not clearly request information then the Council should have contacted the Appellant to provide him with advice. (d) The fact that there may be other bodies to contact does not impact on the Appellant’s right to request information under FOIA. (e) It is pure conjecture that responding to these requests will lead to further requests. (f) The Appellant did not ‘knowingly’ place a burden on the Council. (g) There is nothing wrong with using responses to FOIA requests to pursue other matters in public.

22. In her response to the appeal, the Commissioner supports the conclusions in the decision notice. She denied that the reason s14 FOIA was relied upon was because the Council did not like what the Appellant did with information. She highlighted that, as stated in Dransfield in the UT (para 29), ‘the context and history of the particular request, in terms of the previous course of dealings between the individual requester and the public authority in question, must be considered in assessing whether it is properly to be characterised as vexatious’, and that (para 10) ‘the purpose of section 14…must be to protect the resources (in the broadest sense of that word) of the public authority from being squandered on disproportionate use of FOIA’.

The Appellant has filed a skeleton argument on 1 September 2021 which provides more background to his various requests.

He also stated that:

– I also intend to call witness who will confirm;

– my FOI’s are in the public interest

– that they had similar FOI’s fulfilled and that the only visible difference between their requests and mine was my ethnic background

– that the only distinguishable difference between my and their FOI requests is our ethnic background.

THE HEARING

23. Before the hearing the Appellant provided the names of the witnesses he intended to call. The Tribunal noticed that no directions had been given about the filing of witness statements or the calling of witnesses. The Tribunal gave directions for summaries of evidence to be filed and the Appellant helpfully managed to do this before the hearing. In the end the Tribunal did not need to admit the witness statements or hear from the witnesses to decide the appeal.

24. At the appeal hearing, the Commissioner did not appear, relying upon what had been submitted in writing. The Tribunal informed the Appellant, that having considered the submissions made by both parties in writing it was of the view that the appeal should succeed as s14 FOIA had been wrongly applied to these requests and that reasons in writing would follow shortly.

DISCUSSION AND REASONS

25. It is true that the requests made the Appellant may not all qualify as requests for information under FOIA. It would be a matter for the Council to decide which of the requests qualify under FOIA and which do not, no doubt applying the Commissioner’s guidance (as set out above) that the bar as to what qualifies is a low one to ascertain whether a particular request ‘still describes distinguishing characteristics of the information’. It seems to us that many of the requests made by the Appellant are very similar to the examples given by the Commissioner. We are surprised that the Commissioner has not referred to and applied her own guidance in this case.

26. We also note that the Commissioner has not said that responding to the requests (once identified) would be burdensome, but has merely asserted that the initial process of extracting valid FOIA requests from the Appellant’s correspondence will be burdensome without explaining why this would be the case. It does not seem to 10 us that the task is particularly burdensome at all. For example, Correspondence 2 is the longest set of questions asked by the Appellant, but essentially what it requires the Council to do (to comply with the Commissioner’s own guidance) is to couch the requests into what might be called ‘FOIA language’.

27. Thus the first three questions in Correspondence 2 are these:- 1. When planning was approved, was the Council aware that [redacted name] was brother and business partner of Cllr [redacted name]? 2. When the land was sold to FIRST CHOICE PROPERTY INVESTMENTS, was the Council aware that the Director of the company, [redacted name], was brother and business partner of Cllr [redacted name]? 3. Was Cllr [redacted name] in any way involved in the sale of the land or the approval of planning permission?

28. It would only take a short time to convert these to the following as advised by the guidance:- Any information held by the Council indicating that:- 1. When planning was approved, it was aware that [redacted name] was brother and business partner of Cllr [redacted name]. 2. When the land was sold to FIRST CHOICE PROPERTY INVESTMENTS, it was aware that the Director of the company was brother and business partner of Cllr [redacted name]. 3. It was aware that Cllr [redacted name] was in any way involved in the sale of the land or the approval of planning permission

29. We cannot predict how the Council would respond to such requests as formulated in this way. For example, to some of these requests it may be that the Council does not hold any information. However, we are of the view that it has not been established that the work required just to reformulate the requests is so burdensome as to make the requests vexatious.

30. Next, the Commissioner is concerned that any responses to these requests is likely to generate further requests and related correspondence. There is some evidence that the Appellant is persistent in relation to the matters that he is concerned about, and he has made a number of FOI requests in a short period. But in our view, there is 11 insufficient evidence, at this point of ‘unreasonable persistence’ so as to make the requests vexatious. That does not, of course, rule out the Council relying on s14 FOIA in the future if the burden of additional requests and correspondence does become excessive.

31. We also cannot agree with the Commissioner’s conclusion that it is reasonable for her to conclude that because there were three requests in one day that the Appellant has taken that action ‘knowingly’ to place a burden on the Council. It seems to us that the Appellant has genuine reasons for seeking information and is not making requests simply to create more work for the Council, as the Commissioner’s finding implies.

32. We are also concerned about the Commissioner’s conclusions at paragraphs 26-28 of the decision notice that ‘the intent of the requests is not simply to seek access to official information’. It seems to us that in many cases requesters must seek information so that they can make specific use of it. One only needs to think about journalists who frequently use FOIA requests, not ‘simply to seek access to official information’, but so they can use the fruits of their requests to write stories or produce documentaries for which they will be paid. Campaigning organisations (and individuals) also use FOI requests to obtain information which they hope will further their aims. Neither journalists nor campaigners are told that their requests are vexatious simply because of this.

33. We concur with the Commissioner that in certain circumstances, addressing a FOIA request to authority A where authority B would be more appropriate, could form part of the assessment for whether s14 FOIA applies. However, we do not agree with the Commissioner’s conclusion that if a requestor holds ‘concerns about the actions undertaken by a public authority’ then it is not appropriate (and vexatious) to make a FOIA request, and the matter should be escalated by a complaints process or through a review body. It seems to us that a FOIA request can often be a first port of call for a requestor who is unsure whether their grievance against a public authority is well founded, and/or that a requestor is entitled to make a FOIA request at the same time as pursuing other remedies.

34. Having made these criticisms of the Commissioner’s approach we do accept that we need to look holistically at the request to reach a conclusion as to whether the requests are vexatious and that will mean looking at the points made by the Commissioner cumulatively rather than just individually.

35. In doing so we note that the Commissioner accepted that the requests relate to matters of public interest, and that it is important that such matters are subject to appropriate transparency by public authorities. Thus it is accepted by the Commissioner that the requests have value. It does not seem to us, on the evidence before us, that a combination of (a) the burden caused to the Council in having assist in formulating the requests, (b) the request history (and associated correspondence) of the Appellant, (c) his motivations in making the requests, and (d) the availability of other remedies is sufficient in all the circumstances to make the requests vexatious. We not that although reference has been made in the paperwork to some aggressive or abusive behaviour by the Appellant, no details or evidence has been provided to us about this.

36. As already stated, our decision does not mean that the Council would necessarily be unsuccessful in relying on s14 FOIA if further requests are made by the Appellant in pursuing these or other issues. 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.

37. We are also aware that, although the Council’s response to the Appellant described the requests as ‘vexatious’, in correspondence with the Commissioner on 9 September 2020 the Council repeatedly describes the Appellant himself as ‘vexatious’, which is not an issue about which s14 FOIA is concerned.

CONCLUSION

38. On that basis, we would allow this appeal. We substitute a decision notice in the terms set out above in this decision and require the Council, to whom a copy of this decision must be sent, to respond to the Appellant’s requests by 12 November 2021.

Stephen Cragg QC

Judge of the First-tier Tribunal Date:

Dated: 12th October 2021.

Promulgated: 14th October 2021

An Appendix to the judgement was provided setting out the six requests that were the subject of this Tribunal appeal, however it is suggested that the reader will find it more beneficial to view a complete summary of Raja Miah’s requests on the What Do They Know platform at this link.

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Page last updated Tuesday 16th November, 2021 at 2230hrs

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Published by Neil Wilby

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

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