International travel by staff from Salford Business School

This and other requests now with the ICO.

16 March 2010

Dear Li Na

Information request to University of Salford

Thank you for your correspondence dated 18 February 2010 in which you complain about the time taken for the University of Salford to carry out an internal review that you requested on 3 December 2009. Please note I will write to you separately regarding the other issues you raise.

Your internal review request was in relation to thirteen requests you made between 4 November 2009 and 2 December 2009 which were refused on the basis of costs under section 12 of the Freedom of Information Act 2000.

The right to complain to the Information Commissioner is given under section 50 of the Act. However, a complaint may be deemed ineligible under section 50, if for example:

* there is an undue delay before bringing a complaint to our attention, or
* you have not exhausted any complaints procedure which is provided by the public authority.

Before accepting complaints, the Commissioner generally expects complainants to allow public authorities the opportunity to respond to their appeal for a review of the handling of or decision regarding their FOI request.

Although there is no statutory time set out in the Act within which public authorities must complete a review, the Commissioner has issued guidance on this matter (Good Practice Guidance 5). The Commissioner considers that a reasonable time for completing an internal review is 20 working days from the date of the request for review, and in no case should the total time taken exceed 40 working days.

I have written to the University of Salford to provide them with a copy of your request for internal review and recommend that they issue you with an internal review decision within 20 working days from the date of receipt of our letter. I attach a copy for your information.

From my letter to the University of Salford you will see that significant or repeated unreasonable delays in dealing with internal reviews by public authorities are monitored and where appropriate further action may be taken.

This case has now been closed, however if you do not receive a response within 20 working days please contact us quoting the reference number on this letter.

If you remain dissatisfied after having exhausted the University of Salford’s internal review process and would like us to look into the matter, please contact us quoting the reference number on this letter and providing us with a copy of the internal review decision.

Yours sincerely

Tony Dixon
FoI Case Officer
FoI Case Reception Unit
The Information Commissioner’s Office

If you are not getting enough of Mr Matthew Stephenson's wit heres where you can find more comical quips, http://www.infogov.salford.ac.uk/ is a good place to take a look and also Mr Matthew Stephenson is the Chairman at The Records Management Society http://www.rms-gb.org.uk/conference-spea... . The Information Governance website at Salford is http://www.infogov.salford.ac.uk/ and lists subjects on the home page as; Data Protection, Freedom of Information, Copyright, Information Security, Records management and a list of other stuff that "...You may also be interested in:.." I couldn't stop laughing at this joke of Mathew : "You may also be interested in:... ... The Human Rights Act 1998 ... and ...The Regulation of Investigatory Powers Act 2000... " who in the UK wouldn't be interested in RIPA and human rights ? Mr Matthew Stephenson can be contacted at : m.stephenson@salford.ac.uk

Brilliant! :D

25 June 2010

Dear Ms Na,

I am writing with reference to your complaint about Salford University, with regard to the request for information you made to the university, your case reference: FSxxxxxxxx.

As you will be aware, this case and a number of other requests from other individuals, have been refused as vexatious under section 14(1) of the Freedom of Information Act 2000 (the Act).

In considering a complaint about a refusal of a request as vexatious, the Commissioner will consider the context and history of the request as well as the strengths and weaknesses of both parties’ arguments in relation to some or all of the following five factors to reach a reasoned conclusion as to whether a reasonable public authority could refuse to comply with the request on the grounds that it is vexatious:

1) whether compliance would create a significant burden in terms of expense and distraction

2) whether the request is designed to cause disruption or annoyance

3) whether the request has the effect of harassing the public authority or its staff

4) whether the request can otherwise fairly be characterised as obsessive or manifestly unreasonable

5) whether the request has any serious purpose or value

The Commissioner has issued guidance about the use of section 14 of the Act, which is available on the ICO website at the following link:

http://www.ico.gov.uk/upload/documents/l...

In the current circumstances, the public authority has argued that the timing of the requests (over 100 requests in a 3-month period) from a small number of individuals, whose requests sometimes overlap or request information on similar subjects, is evidence of a degree of collusion and consequent intention to cause disruption, annoyance or otherwise harass the public authority by a ‘campaign’ of FOI requests. Further, it is reasonably evident that the significant increase in the number of requests received in this short period will create a burden in terms of expense, and distraction, in diverting staff from their normal duties in order to compile information for responses to these requests.

These arguments are currently under consideration. Noting the list of factors which are commonly considered in these circumstances, you will see that the main factor which weighs in the balance in favour of the requester is the last: whether the request has any serious purpose or value. If you have any evidence and arguments which would indicate any serious purpose or value behind your requests, please would you provide it to me? Similarly, if you have any evidence which you consider may be used in rebuttal of the public authority’s position relating to the ‘disruption, annoyance or harassment’ you are invited to submit it.

If replying by email, please select 'reply' to this message and leave the subject line in the message header unchanged. This will send your reply directly to the case file. I would hope to receive your response within the next 10 working days in order to progress this investigation without undue delay.

Thank you.

Yours sincerely

Steven Dickinson

Complaints Officer

Dear Mr Dickinson

Thank you for your reply. I have read your useful guidance about section 14. My reply is separated under the two headings you suggest.

1. "Disruption, annoyance or harassment"
I do not accept the University's position relating to the ‘disruption, annoyance or harassment’. The statistic of "over 100 requests in a 3-month period from a small number of individuals, whose requests sometimes overlap or request information on similar subjects" is very misleading. For example, 20 of these requests were from a "Roger Norvegicus" and were understandably rejected as this is not a real name. The same 20 were then resubmitted by Andy Lockhart. In fact, these 40 requests should probably have been combined into one, and later they were: http://www.whatdotheyknow.com/request/sa... This immediately deals with 41 of the 100 requests. A number of requests from Mr Duke should also have been combined, as should some of mine about travel expenses (I admitted this in my email to the university on 3rd December 2009, available on the whatdotheyknow site). In summary, I believe that at least half of the 100 requests and the overlap may be simply due to various requesters lack of detailed knowledge of the FOI act, and are therefore not vexatious.

Importantly, I also believe that if an authority repeatedly ignores requests, delays responses or tries to avoid them in other ways, requesters start to "scent blood", and this results in further requests. Of course, just because an authority ignores requests and replies very late doesn't mean that they necessarily have something to hide, and this may well be true of the University of Salford. But I freely admit that Salford's handling of FOI requests increased my interest in them and has resulted in further requests from me.

I would also like to point out that this is not a small authority, and it has a number of staff who have responsibility for FOI and similar matters: http://www.governance.salford.ac.uk/page... In my opinion, they certainly should have the resources to respond to FOI requests promptly.

I don't believe that a number of requests put through whatdotheyknow.com is evidence of collusion. I think there is a "snowballing" effect as more people get interested in the authority as it very publicly ignores or rejects nearly every request. I recall that some of my requests were inspired by successful requests on the site to other authorities (eg University of Glasgow). Is that collusion? I don't think so. Of the other requesters, I have heard of Gary Duke as his dispute with the University was widely reported in the press (Times Higher, Manchester Evening News etc).

Finally, I believe that my requests have always been polite, clear and concise and they could not have a negative impact on the health of the staff who received them.

2. "Serious purpose or value"
I believe there are two connected serious purposes or values behind most of my requests: the University's activities in China, and the University's use of public funds at a time when it is faced with funding cuts (for example http://www.timeshighereducation.co.uk/st... this week) and is making job cuts (for example http://www.timeshighereducation.co.uk/st...). More generally, after the scandal of MP's expenses, I am interested in university expenses, for example so-called "academic tourism" paid by public funds. I believe there is a clear public interest argument, especially after the information released under FOI by others, eg Leeds Metropolitan University http://www.yorkshirepost.co.uk/leeds-met... and York University http://news.bbc.co.uk/1/hi/england/north...

[a number of details and queries concerning the activities of Professor John Wilson, Ms Li Xiang, Dr Li-Hua, Dr Andrew and PMI2 projects omitted here]

I hope this helps you with your investigation but if you need any more information I will be happy to provide it.

Li Na

As a lawyer, I have been following the saga of the University of Salford's possible mis-use of the section 14 exemption with some interest. At the risk of stating the obvious, I have four observations, all relating to the University's practice of changing its basis for refusal (to a section 14-based refusal) following a request for an internal review:

1) It must be in some way persuasive that the fact that a request was not originally classified as "vexatious" means that it was not, in fact, vexatious when first received - much of the difficulty surrounding the application of the section 14 exemption is the notoriously subjective nature of the vexatiousness test, and one would have thought that if a request was truly vexatious when first received, this would be uppermost in the minds of the responder and therefore would be the reason cited for refusal. (Conversely, a retrospective application of the vexatiousness test must be treated with due skepticism.)

2) The above point is complemented by the fact that the University of Salford seems to be especially willing to deploy the section 14 exemption (perhaps because of the inscrutability it affords) - if such an apparently easy-to-deploy refusal basis was ignored at the time of the original refusal (in favour of other, more convoluted refusal bases, as is the case here), one can only infer that this was perhaps because the section 14 basis was not felt at the time to be sustainable.

3) It is fundamental to English administrative law that any review of an administrative decision is based on the information available to the decision-maker at the time of such decision being made. In real terms, this means that, for example, if one request is rejected as vexatious, and then a further 20 requests are later submitted, those additional requests have no bearing on whether or not the original request was in fact vexatious - there can be no vindication after the event. Similarly, in the shoes of the ICO I would be scrutinising very carefully the basis on which an internal review enabled a change of refusal basis to section 14 - I would be especially keen to ensure that there were absolutely no grounds for suspicion that it was the request for an internal review itself which led to the subsequent re-characterisation of a request as vexatious.

4) As a legal practitioner, I am interested in any apparent loophole in our legislation. The fact that Parliament intended the entire FOI response regime to be time-bound is self-evident. Less self-evident is the legitimacy of changing the basis for refusal as the result of an internal review (whether or not properly conducted). Firstly, either the right to request an internal review of the new characterisation of the request has been denied, or one has a potentially never-ending and self-perpetuating process in which successive internal reviews yield new re-characterisations, with no satisfactory conclusion. Secondly, such a practice is open to substantial abuse in terms of prolonging the timescales for a response (e.g. a refusal can be given on any grounds, considered or not, safe in the knowledge that one has then bought the time afforded by the internal review process to come up with a better grounds for refusal). Neither outcome can have been Parliament's intention, and a purposive interpretation would seem to be in order.

I would suggest that the requester in this instance consider raising these points with the ICO.

I also suggest that the ICO be reminded that the original refusal was not on the basis of vexatiousness, and that any investigation should therefore encompass the original refusal (i.e. not limit itself to the question of whether or not the request was vexatious), even if only to complete the context for the subsequent re-characterisation to a section 14 refusal.

This request is the subject of the Information Commissioner's decision notice FS50297312:

"The Commissioner finds that the public authority correctly refused the requests under section 14(1) of the Act and requires no action to be taken."
<http://www.ico.gov.uk/~/media/documents/...>