Tag: David Farrer QC

Information rights ‘watchdog’ vexed by recent Tribunal findings

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/

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

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© Neil Wilby 2015-2018. 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.

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).

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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

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.

© Neil Wilby 2015-2017. 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.