The legal no man's land of the sham PHSO review process.

Dear Parliamentary and Health Service Ombudsman,

In the PHSO Board Open Session Meeting 14 December 2017 it states the following at paragraph 12.8:

'Jon Shortridge asked about the legal status of CCT [Customer Care Team] reviews, and what was the basis of a review if it did not constitute a new decision. Karl Bannister explained that our legislation did not allow for reviews. There was a risk involved if we did NOT [emphasis mine] follow the legislation. However if we decided that a review was wrong we needed to be PRAGMATIC [emphasis mine]. Ultimately this was a question of our RISK APPETITE [emphasis mine].'

(1) Please provide all relevant documents (discussions, legal briefing notes, unabridged Board Meeting Minutes, guidance etc.) that the PHSO possess with regard to the legal status of reviews of decisions.

(2) Please provide all relevant documents (discussions, legal briefing notes, unabridged Board Meetings, guidance etc.) that the PHSO possess with regard to Alternative Legal Remedy.

Yours faithfully,

M Boyce

informationrights@ombudsman.org.uk, Parliamentary and Health Service Ombudsman

Thank you for contacting the Parliamentary and Health Service Ombudsman’s (PHSO) Freedom of Information and Data Protection Team. This is to confirm we have received your request.
If you have made a request for information under the Freedom of Information Act 2000 or Environment Information Regulations 2004, we will respond to your request within 20 working days in accordance with the statutory time frames set out in both Acts.
If you have made a request for personal information held by the PHSO, your request will be processed as a Subject Access Request under the provisions of the Data Protection Act 2018 and will be responded to within one calendar month in accordance with the statutory time frame set out in the Act.
We may contact you before this time if we require further clarification or if we need to extend the time required to complete your request.
For Subject Access Requests, we will send any personal information via secure email, unless you instruct us differently. To access the information on the email we send, you will need to sign up to our secure email service. Details can be found on our website using the link below:
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InformationRights, Parliamentary and Health Service Ombudsman

Dear M Boyce

 

Re: Information request reference R0000153

 

I am writing with regards to your request for information currently being
processed by the PHSO.

 

In accordance with Section 10(3) of the Freedom of Information Act it has
been necessary to extend the time for compliance for your request by a
further 20 working days as Section 42 of the Act is applicable. As this is
a qualified exemption this further time is needed to consider the Public
Interest Test. We therefore aim to provide you with a final response to
your request once a decision has been made on or before 25 September 2018.

 

Yours sincerely

 

Freedom of Information/Data Protection Team

Parliamentary and Health Service Ombudsman

W: www.ombudsman.org.uk

 

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Gadawodd M Boyce anodiad ()

So the PHSO is now trying desperately to use the public interest test in order to refuse to provide the requested information.
The net is closing in on the sham PHSO review process, and in fact on the whole of the investigative process.

Gadawodd phsothefacts Pressure Group anodiad ()

PHSO tight-lipped in regard to these specific questions regarding legislation. Seems they are able to make it up as they go along.

https://www.whatdotheyknow.com/request/m...

Gadawodd M Boyce anodiad ()

https://publications.parliament.uk/pa/cm...

Take a look at the above; it makes interesting reading with regard to the current legal ambiguity on reviews and quashing reports.

InformationRights, Parliamentary and Health Service Ombudsman

3 Atodiad

Dear M Boyce

 

RE: Your information request: R0000153

                            

I write in response to your email of 31 July 2018 regarding your request
for information made under the Freedom of Information Act 2000 to the
Parliamentary and Health Service Ombudsman (PHSO). You have requested:

 

(1) Please provide all relevant documents (discussions, legal briefing
notes, unabridged Board Meeting Minutes, guidance etc.) that the PHSO
possess with regard to the legal status of reviews of decisions.

 

(2) Please provide all relevant documents (discussions, legal briefing
notes, unabridged Board Meetings, guidance etc.) that the PHSO possess
with regard to Alternative Legal Remedy.

 

1.Section 1(1) of the Act provides that a public authority has a duty to
state in writing whether it holds information of the description specified
in a request. In accordance with our obligations we can confirm that the
PHSO holds the information requested.

 

However, section 42(1) of the Act permits information to be withheld,
subject to the application of a public interest test where information in
respect of which a claim to legal professional privilege is exempt
information.

 

We have now had the opportunity to consider the exemption under section 42
as it applies to the information you have requested; and in particular
whether the public interest lies in favour of maintaining the exemption or
in disclosing this information to you.

 

It is recognised there is a public interest in ensuring decisions have
been made on the basis of good quality legal advice and this could be
extended to discussions relating to the legal status of reviews.

 

However, it is not in the public interest to restrict the PHSO in it’s
ability to speak freely and frankly with legal advisers in order to obtain
appropriate legal advice which is a fundamental requirement of the English
legal system. There must be confidentiality of any communications between
a lawyer and client to ensure complete fairness in legal proceedings. It
is noted that the information requested falls within the definition of a
communication under s42 as ‘a document that conveys information’ which can
include a letter, report, email, memo, note of a conversation, photograph
or an audio/visual recording. Such information in this case has been made
for the main purpose of seeking or giving legal advice which is classified
as a confidential communication between a client and lawyer under the Act.

 

In light of the above, the view is that in all the circumstances of this
case, the public interest in disclosure is outweighed by the public
interest in maintaining the exemption; and therefore this element of your
request is refused.

 

2. You have requested ‘all relevant documents (discussions, legal briefing
notes, unabridged Board Meetings, guidance etc.) that the PHSO possess
with regard to Alternative Legal Remedy’. However, your request is too
broad to enable us to identify all relevant information held within cost
limits as ALR is considered at every step of the complaint process. The
text below refers:

 

The Parliamentary Commissioner Act 1967 and the Health Service
Commissioners Act 1993 both require that the Ombudsman and his staff
consider whether any appeal or reference or review to any Tribunal or
Court existed for the complainant and in such cases where such an
alternate legal remedy exists or did exist, the Ombudsman does not have
authority to conduct an investigation.  Each Act however allows the
Ombudsman to set this prohibition aside if he is satisfied that in the
particular circumstances of that case it is not reasonable to expect that
the complainant does or did take that alternate legal remedy. 

 

As a result, the Ombudsman must ask each complainant whether or not they
have considered or taken legal action, and in some cases may seek further
information about that legal action or lack of legal action in order to
assist this particular part of the decision making process.  

 

Over the years, consideration of the policy approach to these statutory
requirements has taken place, including the drafting of the application
form that complainants are asked to fill out, and various versions of the
casework policy and guidance.

 

Therefore, to try to ascertain all information held regarding ALR where no
time frame for the search is stipulated and the search is for any and all
‘relevant documents’ held would be an extremely labour intensive piece of
work which would involve the manual inspection of a vast amount of files
and documents held across a number of departments. To search our casework
policy folders alone, these folders date from 2009/2010 to the present day
and contain over 4,000 documents across 19 folders. It would take a
minimum of 3 minutes to review the content for each item therefore to
perform this work for over 4,000 documents would take approximately 200
hours. Further documents referring ALR may be held by other teams such as
our feedback and learning team, internal and external communications,
training, external affairs and strategy as well as legal. Searches would
have to be conducted by all of these teams which would add to the time
needed.

 

In light of the above, this work could not be undertaken without incurring
disproportionate cost. Section 12(1) of the Act has been applied to this
element of your request.

 

In accordance with Section 16 of the Act, to provide advice and
assistance, you may wish to consider refining your request to a specific
period of time and/or to a specific document type which may then enable us
perform the search/extract the required information within FOI cost
limits. Due to the sheer volume of information which is potentially held
on this subject we would suggest a short time period and for you to limit
the type of documents to search. However, we cannot provide any guarantees
over what we will be able to provide at this stage as further exemptions
may apply.

 

If you believe we have made an error in the way I have processed your
information request, it is open to you to request an internal review.  You
can do this by writing to us by post or by email to
[1][Parliamentary and Health Service Ombudsman request email]. You will need to specify that the
nature of the issue is and we can consider the matter further. Beyond
that, it is open to you to complain to the Information Commissioner’s
Office ([2]www.ico.org.uk).

 

Yours sincerely

 

Freedom of Information/Data Protection Team

Parliamentary and Health Service Ombudsman

W: [3]www.ombudsman.org.uk

 

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Dear Parliamentary and Health Service Ombudsman,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Parliamentary and Health Service Ombudsman's handling of my FOI request 'The legal no man's land of the sham PHSO review process.'.

Your argument about legal professional privilege exempting the requested information from disclosure is utterly unsustainable. You have not presented a proper, full or coherent balance of argument in favour of exemption. You must now do so. You state that frank and secret discussions between the PHSO and legal advisers far outweighs disclosing the information to the general public. This is utter nonsense. Complainants to the PHSO have a right to know what is the legal status of reviews of decisions, and how this affects a possible resort to judicial review, with all the very serious financial consequences that follow. Leaving complainants in a legal no man's land of not knowing if reviews are legally provided for or not is a sickening affront to liberal democracy. Strong arguments in favour of disclosure include, but are not limited to, the following:

Transparency and accountability;

the large number of people affected;

the large amount of public money the PHSO have spent on legal advice;

the fact that the PHSO has published contradictory and misleading information on this matter;

the fact that the PHSO has supplied me with voluminously contradictory and misleading advice on this matter.

Make no mistake about all of this: I will take this matter to the ICO and then to the tribunal. That is a promise.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/t...

Yours faithfully,

M Boyce

informationrights@ombudsman.org.uk, Parliamentary and Health Service Ombudsman

Thank you for contacting the Parliamentary and Health Service Ombudsman’s (PHSO) Freedom of Information and Data Protection Team. This is to confirm we have received your request.
If you have made a request for information under the Freedom of Information Act 2000 or Environment Information Regulations 2004, we will respond to your request within 20 working days in accordance with the statutory time frames set out in both Acts.
If you have made a request for personal information held by the PHSO, your request will be processed as a Subject Access Request under the provisions of the Data Protection Act 2018 and will be responded to within one calendar month in accordance with the statutory time frame set out in the Act.
We may contact you before this time if we require further clarification or if we need to extend the time required to complete your request.
For Subject Access Requests, we will send any personal information via secure email, unless you instruct us differently. To access the information on the email we send, you will need to sign up to our secure email service. Details can be found on our website using the link below:
www.ombudsman.org.uk/about-us/being-open...
If you require us to post your personal information to you instead you will need to inform us of this and confirm your current address as soon as possible.

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Dear Parliamentary and Health Service Ombudsman,

With regard to my request for information on alternative legal remedy I am prepared to wait a week to see what your response will be to my further FOI request on this subject.
You might want to consider the following though in informing your response:

In the above reply you clearly state:

'...ALR is considered at EVERY step of the complaint process.'

This fully accords with the advice in the PHSO Main Guidance where it states that:

'ALR should be considered THROUGHOUT the lifetime of a complaint.'

Both of these public statements directly and unequivocally conflict with the advice given to me by the PHSO legal team in their reply to my letter before claim, dated 02 August 2018, as part of the pre-action protocol of judicial review, as follows:

'Your interpretation of S5 (2) [of the Parliamentary Commissioner Act 1967] is incorrect, it relates to situations where there may be an alternative legal remedy AT THE POINT THAT THE ORGINAL COMPLAINT HAS BEEN MADE. Alternative legal remedy is NOT a relevant consideration on assessment of whether it is appropriate to accept a request to review.'

So which advice is correct: the advice contained in the PHSO Main Guidance, and now corroborated by the PHSO Freedom of Information Team, or the contradictory advice given to me by the PHSO legal team on the legal issue of ALR?

Yours faithfully,

M Boyce

informationrights@ombudsman.org.uk, Parliamentary and Health Service Ombudsman

Thank you for contacting the Parliamentary and Health Service Ombudsman’s (PHSO) Freedom of Information and Data Protection Team. This is to confirm we have received your request.
If you have made a request for information under the Freedom of Information Act 2000 or Environment Information Regulations 2004, we will respond to your request within 20 working days in accordance with the statutory time frames set out in both Acts.
If you have made a request for personal information held by the PHSO, your request will be processed as a Subject Access Request under the provisions of the Data Protection Act 2018 and will be responded to within one calendar month in accordance with the statutory time frame set out in the Act.
We may contact you before this time if we require further clarification or if we need to extend the time required to complete your request.
For Subject Access Requests, we will send any personal information via secure email, unless you instruct us differently. To access the information on the email we send, you will need to sign up to our secure email service. Details can be found on our website using the link below:
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If you require us to post your personal information to you instead you will need to inform us of this and confirm your current address as soon as possible.

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Gadawodd M Boyce anodiad ()

The PHSO state above that:

'There must be confidentiality of ANY communications between a lawyer [Landmark Chambers] and client [PHSO] to ensue COMPLETE FAIRNESS in legal proceedings [when any complainant wishes to apply for judicial review of a PHSO review decision]

The PHSO have used vast amounts of tax-payer money to ascertain whether their review process is legal or not. They are now jealously and unfairly keeping this information all to themselves. Tax-payers are denied access to this information that they have paid for in order to create for them maximum uncertainty and maximum jeopardy if they wish to go to court.

Who else would regard this situation as completely fair? We'll see if the ICO does.

Gadawodd M Boyce anodiad ()

https://www.pdpjournals.com/docs/88363.pdf

The above shows that an authority can be defeated in its attempt to unfairly hide information from the public under the guise of legal professional privilege. The PHSO have failed to undertake a thorough public interest balancing test (PIBT). I fully intend to defeat the PHSO when I take this case to the First Tier Tribunal. This will have the added benefit of disclosing to the wider world how the PHSO want to make their processes more and more unfair for a complainant and more and more biased in favour of public authorities.

I am looking forward to preparing my case for tribunal, and unlike judicial review at the High Court, it is free and costs are almost never awarded against a losing side - not that I have any intention of losing.

Gadawodd M Boyce anodiad ()

https://www.spso.org.uk/decision-review-...

And then there's the above advice from the Scottish Public Service Ombudsman (SPSO).

They say:

'The law says that people and bodies can only challenge our decisions by judicial review. We know this can be a complicated technical process, and so we have, of our own initiative, established a process for reviewing our decisions. If you want to challenge our decision [not review decision] again, you will only be able to do this using judicial review.'

Think carefully about what this says and means. It means that the Ombudsman is conducting reviews OUTSIDE of the law. It means that any review has no legal status - it cannot be challenged by judicial review, because it is not legally provided for.
The review process is outside the law and is therefore not covered by the law.

This is why the PHSO are refusing to publish information on the legal status of reviews - because they are not legally allowed for and therefore cannot be amenable to judicial review. The review process is just a sham in order to try to appease a disgruntled complainant.
The PHSO would only refuse to publish its legal advice on the legal status of reviews if it had something serious and seriously unfair and misleading to hide.
I didn't apply for judicial review of my review decision because I believed that the review process was not legal and therefore a judge would refuse the application on grounds that a review has no statutory basis. I would then have been landed with many thousands of pounds of costs. The PHSO went along with the charade of the pre-action protocol instead of informing me that it would be pointless applying for JR because you cannot JR a review decision - even though they said I could. They were looking forward to another big pay out.

InformationRights, Parliamentary and Health Service Ombudsman

3 Atodiad

Dear M Boyce,

 

Internal Review of Freedom of Information Request

 

I write in response to your email of 21 September in which you request an
Internal Review of our response to your request for information. I have
reconsidered your correspondence and our response to you.

 

Timeliness of Response

 

The time for responding was extended in line with Section 10(3) of the
Freedom of Information Act. The response to your request was within the
additional 20 working days allowed.

 

Information Provided

 

I have reviewed part 1 of your request and considered if the use of the
section 42 exemption (legal professional privilege) was applied correctly.

 

Legal Professional Privilege is not defined in the Freedom of Information
Act as it is a common law concept. In common law Legal Professional
Privilege is intended to provide confidentiality between professional
legal advisers and clients.

 

Section 42 provides that, subject to a public interest test, information
in respect of which a claim to legal professional privilege could be
maintained is exempt from disclosure.  In considering the public interest
arguments, I acknowledge that, as a general principle, there is a public
interest in PHSO being as open and transparent as possible and being
accountable for the quality of decision making.

 

However, legal professional privilege is an overriding interest which is
only likely to be outweighed by the public interest in disclosure in very
exceptional circumstances. PHSO should have the ability to speak freely
and frankly with legal advisors in order to obtain appropriate legal
advice. The communications are for the dominant purpose of obtaining legal
advice and there is a strong inherent public interest in PHSO maintaining
the exemption so that full and frank legal advice can be provided.

 

Conclusion

 

My conclusion is, therefore, that in all the circumstances of this case
there is a greater public interest in maintaining the exemption than in
providing the information to you and the section 42 exemption was
correctly applied.

 

For the reasons set up above I do not uphold your complaint.

 

If you remain unhappy with our response, it is open to you to complain to
the Information Commissioner’s Office ([1]www.ico.org.uk).

 

Yours sincerely,

 

 

Andrew Martin

Freedom Of Information/Data Protection Manager

Parliamentary and Health Service Ombudsman

W: [2]www.ombudsman.org.uk

 

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dangos adrannau a ddyfynnir

Dear InformationRights,

Thank you for your prompt response to my request for an internal review.

I have now contacted the Information Commissioner's Office (ICO) to ask them to investigate. You have failed to undertake a proper and thorough public interest balancing test as applied to legal professional privilege.
The factors favouring disclosure outweigh those favouring exemption. Simply put, the PHSO cannot reasonably and fairly hide the legal status of its review process. To continue to do so would be an outrage to natural justice. The public have a right to know whether PHSO reviews of final reports are legally allowed for or not.

Yours sincerely,

M Boyce

Informationrights@ombudsman.org.uk, Parliamentary and Health Service Ombudsman

Thank you for contacting the Parliamentary and Health Service Ombudsman’s (PHSO) Freedom of Information and Data Protection Team. This is to confirm we have received your request.
If you have made a request for information under the Freedom of Information Act 2000 or Environment Information Regulations 2004, we will respond to your request within 20 working days in accordance with the statutory time frames set out in both Acts.
If you have made a request for personal information held by the PHSO, your request will be processed as a Subject Access Request under the provisions of the Data Protection Act 2018 and will be responded to within one calendar month in accordance with the statutory time frame set out in the Act.
We may contact you before this time if we require further clarification or if we need to extend the time required to complete your request.
For Subject Access Requests, we will send any personal information via secure email, unless you instruct us differently. To access the information on the email we send, you will need to sign up to our secure email service. Details can be found on our website using the link below:
www.ombudsman.org.uk/about-us/being-open...
If you require us to post your personal information to you instead you will need to inform us of this and confirm your current address as soon as possible.

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Gadawodd M Boyce anodiad ()

The Walker v PHSO judicial review case proves that the review process is legally allowed for (statutorily provided) because you could not judicially review a review of a PHSO final report it if was not statutorily provided for, albeit implicitly rather than explicitly.
Stated in Walker as follows:

'On behalf of the Ombudsman, it is contended that the relevant decision being challenged is the REVIEW refusal decision dated 20 November 2009..'

If the review process was not legally allowed for then any JR would have to date from the final report and not the review decision.
In my case the PHSO repeatedly told me that the review process was not legally allowed for and that any application for JR had to be made within 3 months of the final report and not within 3 months of the review decision. They clearly lied to me and they will be held to account for this.
Why is the PHSO refusing to say that reviews are legally allowed for(and therefore subject to JR) when they know that they are and have known this for many years? Why are they refusing to publish legal advice/opinion on this?
Because it suits them to sow the seeds of doubt in any complainants mind, to make them believe that the review process is just a quality control feedback exercise and nothing more. This grotesque deceit by the PHSO will be their undoing and we must persevere to make sure it is. Future complainants should never have to endure this deceit, this fraud, and this malicious practice by the PHSO.

Gadawodd M Boyce anodiad ()

it is indeed. Thank you very much.

Bernard Jenkin is never going to solve the problem of the PHSO because he lies at the very heart of the problem. He if can't be bothered to address PHSO failings he should do the right thing and step down and let someone do the job who will. Fat chance of any self-serving Tory doing this.

Gadawodd M Boyce anodiad ()

I have now decided that I am going to ask the PHSO to conduct a fresh investigation of my complaint. They will of course refuse to do so and then I can challenge that by judicial review. The reasons for the request for a fresh investigation are that the PHSO review process denied me fair access to judicial review - procedural impropriety in the form of a review taking place AFTER a judicial review finding of totally without merit. The review decision also was significantly and substantively different to the final report. The PHSO also stated that I could not legally challenge their review decision because reviews are not statutorily provided for - they are mere quality control exercises in futility.
Let's see what happens. Should be interesting.

Gadawodd M Boyce anodiad ()

https://www.professionaladviser.com/prof...

The above judicial review decision due in a few weeks time should finally answer the question of whether Ombudsman reviews of final decisions are in fact legally allowed for or not. The PHSO are refusing to say one way or the other. They will also be watching the Berkeley case very closely.
Watch this space.

Gadawodd Jason anodiad ()

I have just made a further FOI request:

https://www.whatdotheyknow.com/request/f...

I agree, it does seem the review process is a cynical ploy to scupper most complaints/review requests.

It all seems a bit like the Wild West, where the Sheriff has been kidnapped or is otherwise drunk and completely disinterested.

I would argue that even if there was no review process, there would still be an issue of access to justice. As you are no doubt aware, a JR could easily cost you 20K or more if you lose. To the PHSO, they won't lose a minute's sleep as any legal costs will be taken directly from the taxpayer. Also, if you litigate in person, they probably won't have much cost to consider at all.

I even sent the PHSO a letter before claim and their obscurification and opaqueness was quite staggering! They couldn't even be bothered to send me a copy of the JR pre-action protocol, as they were required to do in accordance with the pre-action protocol.

Gadawodd Jason anodiad ()

Just go another e-mail from Mr Roper. The PHSO have just published the latest "Review and Feedback Team guidance":

https://www.ombudsman.org.uk/sites/defau...

I also received further disingenuous comments regarding my recent phone call.

Gadawodd A.E. anodiad ()

PHSO can quash a report but their process for this only appears to allow for it to happen within a review: https://www.whatdotheyknow.com/request/o...

So what happens if you have had a review which was not upheld and then produce evidence that they got it wrong!

I think even if they couldn't find a reason to refuse to provide details of the legal advice in case it harms them, they would trump another FOI exemption up as these bodies always do. It's a farce.

Gadawodd M Boyce anodiad ()

I should here back from the ICO/Tribunal tomorrow with the ICO's response to my grounds for appeal, or Monday 11th March at the latest.
The ICO and PHSO haven't got a legal leg to stand on, but as always its not what you know that counts but who you know and how much tax-payer's cash you've got to splash on big-shot lawyers who merely have to smile at a judge and the case is theirs.
Whatever happens with the Tribunal, it won't be the end of the matter -not by a long way. It is too important to let the establishment get away with covering-up this illegal behaviour.

Gadawodd M Boyce anodiad ()

There is another small fly in the ointment. It now seems that the doctrine of partial disclosure of documents outside litigation (advice privilege) will NOT constitute waiver/loss of legal professional privilege.

However, and it is big however, this is still subject to the PIT balance test. In the below FTT decision (EA/2007/0092) it highlights in blue that an applicant must not have been misled over the substantive legal position. Clearly the PHSO are providing misleading information if they say in their board minutes that the review process is not legal, but then in response to FOI requests they say it is legal - they claim to have the legal power to conduct reviews.

http://informationrights.decisions.tribu...

Gadawodd M Boyce anodiad ()

To clarify for the last post. The contradiction/misleading advice is as follows:

In the December 2017 Board Minutes it states:

'Karl Bannister explained that our legislation did NOT allow for reviews.'

In the Wheatley/PHSOthefacts FOI request 'Quashing of reports', it states:

'Ombudsman's powers

The Ombudsman has developed a PROCESS of internal review to identify any material errors..'

The Ombudsman is clearly saying in the FOI response that the review process is legally allowed because the Ombudsman has the power to do this.
This 'power' is presumably a legal power, or is it some kind of special power, like a Ninja warrior power, or the power to try and pull the wool over someone's eyes?
Just because the Ombudsman has designed/concocted a review process does not make it legal. I could design a process to rob a bank, but it would not make it legal, and I certainly wouldn't be able to hide behind legal professional privilege.

Gadawodd M Boyce anodiad ()

And in paragraph 29 of the above:

What would undermine LPP?

'Where the authority is misrepresenting the facts.' Check.

'Where the authority is pursuing a policy which appears to be unlawful.' Check.

'Where there are clear indications that an authority has ignored unequivocal advice which it obtained.' Check.

And in paragraph 33:

'Misrepresentation of advice would justify disclosure in EVERY case.'

Every case.

Gadawodd M Boyce anodiad ()

Paragraph 30 of the above FTT decision sadly shows just how out of touch most judges are, as follows:

'Everybody is entitled to seek legal advice as to the merits of an issue involving a public authority. Those who advise such authorities are in no better position to give a correct opinion than those to whom the public can go. Disclosure of privileged opinions is not a substitute for legal aid.'

Everybody may be ENTITLED to seek legal advice, but most people are not ABLE to seek legal advice. I approached many lawyers to ask how much they would charge per hour for providing such advice, and the minimum was £400.00 per hour. An estimated bill from one lawyer for providing even very brief outline of advice was around £5000, and over £10,000 for a comprehensive opinion. I don't even earn £400.00 a week, let alone £400.00 an hour.

The Ombudsman can spend unlimited amounts of tax-payer money on obtaining legal advice. Justice is for the rich and not the poor.

As for legal aid, well that might have been available back in 2008, but not since austerity and the Grayling dismantling of the legal aid system back in 2014.

In the final analysis, the public have paid for the legal advice obtained by the Ombudsman. You have paid for it and I have paid for it. That legal advice is now being denied to the very people who paid for it and, even worse, that legal advice is being fully ignored by the Ombudsman in order for it to continue with its illegal practices. The Information Commissioner thinks this is in the public interest. Do you?

Gadawodd M Boyce anodiad ()

There is another serious development.

Version 6.0 of the PHSO 'Service Model Policy Guidance: Review and Feedback Team Guidance' has now been replaced by version 7.0 (01.04.19).

Sadly I didn't print all of version 6.0, but there have been a number of important changes, one of which appears to be the introduction of a new 'peer review' stage into the complaints process.

In paragraph 3 it states:

'....Their manager will then decide what action needs to be taken on a case, including whether it can be resolved short of further consideration, whether a PEER REVIEW is needed or whether it should be passed to RaFT.'

I don't recall any mention of 'peer review' in version 6.0. This is highly significant because the Ombudsman is adding further non-statutory processes into its complaint procedure - processes, like the review, which are non-justiciable because they are not part of the Ombudsman's legislative scheme.

This needs urgent investigation.

Oh, and by the way, I have been informed that the long-standing manager (John Roper) of the CCT/RaFT has now left to 'do other things'.

Gadawodd M Boyce anodiad ()

https://ico.org.uk/media/action-weve-tak...

The above shows quite clearly that the ICO are wrong by refusing to let me know whether the PHSO sent them external legal advice regarding the PHSO review process.
And of course this is the ICO solicitor telling me this, and they should be an expert in public law!

Gadawodd J Roberts anodiad ()

M Boyce,

Paragraph (part of) 15:

'Therefore, the fact that a meeting was held between a legal adviser and client will not be privileged information. However, information contained in the minutes of the meeting or a file note setting out the key points discussed at the meeting is likely to attract privilege.'

It seems that you've been hit with some sort of ICO super-injunction or D-notice!

Gadawodd Jason anodiad ()

M Boyce, it looks like you've well and truly rumbled them. Quite astonishing really!

Their reasons for refusing you such basic information always seemed a bit fanciful and absurd.

And to think the ICO have been tasked with such a important role... Beggar belief.

Gadawodd A.E. anodiad ()

Have you informed ICO of their mistake @M Boyce?

Gadawodd M Boyce anodiad ()

Yes I have informed both the PHSO and the ICO that they are breaching the FOIA. Their response was the usual divide and rule: the PHSO told me to try and get the information from the ICO, and the ICO told me to try and get the information from the PHSO. It is a classic tactic, but in the final analysis it is ICO's decision notice that is under scrutiny with the First-tier Tribunal, and it is they that will have the most explaining to do.

Gadawodd M Boyce anodiad ()

If you've ever fancied going on Countdown, try the following for a conundrum:

The PHSO only ever agree to conduct reviews of their 'final' decisions in the rarest (a tiny fraction of one percent) and most meritorious of cases. Not only did the PHSO agree to conduct a review of my case, but they did so in the middle of High Court judicial review proceedings against them. A little strange you might think, but then it gets even stranger when you consider that the PHSO told the Court that my case, and therefore including their review, should be summarily dismissed as TOTALLY WTHOUT MERIT (TWM)! The judge of course did what the PHSO told him to do. So the PHSO agreed to conduct a review on the clear and demonstrable merits of the case, but then backhandedly arranged for the case to be dismissed by the Court as TOTALLY and absolutely without any merit whatsoever. Of course the PHSO then continued with their review after the Courts TWM certification - which they are not legally allowed to do - and 'found'? Yes that's right, that the review was not upheld. Who'd have believed that they would have come to that conclusion?

Still not convinced that the PHSO are not to be trusted in regard to their sham review process? If not, keep watching this space, and you will be.

Gadawodd A.E. anodiad ()

Nothing surprises me about PHSOs behaviour sadly. The only thing I would say, is that they use reviews to *appear* to be fair and just but it's another sham and therefore isn't only reserved for cases deemed to be meritorious. If it were, they would uphold most or all of them. It's simply another method of shutting people down. We await your further information with interest!

Gadawodd Jason anodiad ()

M Boyce, that is absolutely outrageous and very devious and calculated on the part of the PHSO. It is even more outrageous that the judiciary allowed that to happen. Then again, we all know there is no access to justice for the ordinary person.

Were you hit with a costs order at the end of that charade?

Gadawodd Jason anodiad ()

I think the whole review process is nothing but a cynical attempt for the PHSO to double-check it hasn't missed anything and to time out any JR challenge.

The most common JR challenge against the PHSO would be:

1. It hasn't had full and proper regard for all relevant factors or;
2. Its decision was wholly irrational.

Spot the similarity in the PHSO's sham review criteria.

Of course, the latter is almost certainly bound to fail as it is a very high hurdle to overcome, therefore the PHSO use the review process to give itself a belts and braces type approach (just my opinion).

Gadawodd M Boyce anodiad ()

No Jason, luckily I avoided having to pay any costs. The PHSO failed to provide a schedule of costs (breakdown of costs) for their legal counsel's acknowledgement of service, which was just short of £2000. They also failed to do so for their own internal legal costs. The judge was therefore unable to impose an order of costs.

The increasing delaying tactics of the PHSO make the risk of JR much more risky, because if you apply late, which is completely inevitable, then a judge will almost certainly throw-out the application and impose a full costs order on you. That is the way the PHSO have designed it to be.

Gadawodd M Boyce anodiad ()

One of the major problems with the review process is the time it takes to decide whether to conduct a review and if a review is granted then also the time to conduct the review. At the moment this can take well over a year. As stated many times before the application window for judicial review of a final decision is just three-months. But there is a way around this problem if the PHSO wanted to do so. The JR three month clock starts with the issuance of the 'final decision'. But what if the date of the final decision was actually the real final decision and not just the PHSO's definition of 'final decision'. Anyone wishing to apply for a judicial review of a final decision must first have exhausted all internal appeals processes - the review process - as JR is a remedy of last resort. Therefore logically the date of the 'final decision' should be the date of a refusal of a review request or the date of the outcome of a not-upheld review or an upheld review that did not lead to a fresh investigation. This proper final decision date would then allow a complainant to apply for JR within time, instead of being timed-out as they currently are.

So why does the PHSO insist that the date of the 'final decision' cannot be extended for fairness to that of the final review decision? This final decision would include the original final decision and the review decision combined, and would be dated as of the finality of the review process. The only logical answer is that they do not want the review process to be fair, and they do not want to allow fair and unfettered access to judicial review of their decisions.

Gadawodd M Boyce anodiad ()

The review decision is in effect a continuum or re-iterative decision - it is just confirming the original final decision.
The only other logical reason for not allowing the final decision date to be the review decision date is that the review process is indeed not legal and is therefore not a valid ground for judicial review.
In the Ministry of Justice Judicial Review Guide 2018 at 5.4.1 it states:

'The general time limit for starting a claim for judicial review requires that the claim form be filed promptly and in any event not later than 3 months after the GROUNDS for making the claim first arose.'

Is/are the grounds coincident with the PHSO's final decision letter? Why can't the grounds be the review decision; it is after all just a recapitulation of the final decision? I believe that if the review process was lawful (allowed in statute) then the date of the grounds would of course be the date of the end of the review process and not the date of the final decision.
That is why the PHSO are so insistent that the three-month JR clock starts with their final decision and NOT with their review decision. The timing is dependent on the law, and the statutory law that the PHSO is supposed to follow simply does not allow for reviews.

Gadawodd Jason anodiad ()

I see what you mean. Perhaps this is why the PHSO are so desperate to hide the respective legal advice, and why they have now joined in proceedings at the FTT, whilst trying every dirty trick in the book, along with the ICO.

The whole thing really stinks to high heaven.

Gadawodd Jason anodiad ()

I think this also comes back to my point that the review process gives the PHSO a belt and braces type approach to it's "final decision". The only challenge one is left with is that that the review decision was unlawful etc., but the PHSO seem to have really covered their backs with that one for aforementioned reasons.

As I also mentioned previously, when I sent the PHSO a letter before claim for JR, their solicitor could not even be bothered to comply with the pre-action protocol. It's almost as if they are completely complacent and disdaining.

Gadawodd Jason anodiad ()

M Boyce, are you positing that the review decision (after carrying out a review or refusing to) cannot be challenged at all, regardless of grounds, because the review process is not written into law? if so, is this based on your experience or have you cited case law in this regard?

Gadawodd M Boyce anodiad ()

The review process is not a statutory process, and the PHSO explicitly acknowledge this. There also appears to be no case law to endorse its use, and in fact the Dyer decision made it quite clear that the PHSO could NOT re-open (review) its final decisions. The Berkeley Burke case concerning the Financial Ombudsman Service made it clear that an Ombudsman could commence a fresh (not a review) investigation if warranted and agreed to. The external legal advice commissioned by the PHSO and now being hidden by them may not offer absolute certainty on this issue, but its conclusions will be indicative. The statutory PHSO legislation was drafted with a distinct lack of clarity, and that is why everybody seems to be punching, if not in the dark, then at least in the gloom, on this issue - and that does include me!

Gadawodd M Boyce anodiad ()

http://informationrights.decisions.tribu...

The above decision by the FTT is interesting, even though the Tribunal do not ultimately find in the appellant's favour.
The ICO state that section 42 of the FOIA - legal professional privilege - can only be overruled in 'very exceptional cases'. The Tribunal disagree, and state:
'We do not think this is the right test.'
The ICO have copied and pasted large chunks from the above decision notice into my decision notice - paragraph after paragraph is almost identical word for word, and they even call the PHSO the Department for Education for extra good measure! Both these DN's and be read and compared on the ICO website.
The above shows again that the ICO cannot be trusted to apply the FOIA fairly - 'we do not think this is the right test.' No, and neither does anybody else, but that does not the stop the ICO applying the wrong test over and over and over again in order to slant the 'evidence' in favour of an authority over the public.

Gadawodd M Boyce anodiad ()

And within this FTT decision the ICO is quoted as saying:

'The Commissioner considers.... the clear and important need for ALL (not just the public sector) to have access to FREE, frank and candid legal advice.'

FREE legal advice for ALL.

Yes there is a clear and important need for FREE legal advice for all, and not just for the PHSO and the ICO. But of course the ICO's argument here is pure fantasy peddled in order to justify its own hypocrisy. There is no such thing as FREE legal advice - legal advice has to be paid for by someone. The tax-payer pays for the PHSO's and the ICO's legal advice which they keep to themselves. The general public usually cannot afford to pay again for this legal advice for themselves. If the ICO really believes what it preaches: that legal advice should be free for all, then why are they denying this very legal advice for all? They know that they can deny this legal advice for all under section 42 of the FOIA and they know that most people cannot afford to pay for legal advice themselves.

The ICO by preaching access to free legal advice for all, but then doing everything it can to actually deny access to free legal advice for all, demonstrates the most cynical hypocrisy imaginable.

Gadawodd M Boyce anodiad ()

The ICO have now stated that they have NEVER held the external legal advice that the PHSO commissioned. This is made clear in the link above.
OK, now we are finally clear on that. But why couldn't they just say this in the first place, instead of first saying we can't tell you, then providing an ambiguous answer, and then finally giving an unambiguous answer after having a hissy fit? Why can't the ICO give a straight answer to a straight question, without having to be backed into a legal corner first? It does not inspire confidence in their ability or their fairness.

So, after many, many months the ICO have been forced to admit that the PHSO have not provided them with the external legal advice that the Ombudsman commissioned. The ICO know that the PHSO commissioned this external legal advice, and they know that it is essential for both them and the FTT to have all the evidence in front of them if they are to make a fair and balanced decision based on all (not just some)of the evidence. This also does not inspire confidence in the ICO's ability or fairness. It's like someone who is wrongly being accused of murder being told by the prosecution that the judge and jury will be denied seeing the evidence of their innocence. What the ICO have done and are doing is outrageous.
The PHSO have of course failed to supply the ICO with their external legal advice. This is a clear attempt to pervert the course of justice. How can any person possibly hope to obtain justice when the PHSO and the ICO seem hell-bent on denying a complainant a fair hearing by withholding crucial evidence from the First-tier Tribunal?

Gadawodd M Boyce anodiad ()

https://ico.org.uk/media/action-weve-tak...

And now we have the above concerning the sham review process.

Repeated failure to disclose held documents.

Repeated lack of recollection of 'lost' information.

Repeated failure to recognise that requests for explanation are not requests for opinions.

Gadawodd M Boyce anodiad ()

And from worse to much worse.

Today I received the ICO's response to my second response and to the PHSO's first response. The ICO now admit that the PHSO have not sent them and the Tribunal the external legal advice that they commissioned. But instead of telling the PHSO that they must send the Tribunal this advice, they 'invite' (their word) the PHSO to consider whether it would like to supply this crucial evidence or not. Well, I'm having none of it. I have already informed the Tribunal clerk that I consider that the ICO and the PHSO are working to undermine Tribunal proceedings in an attempt to pervert the course of justice. We will see if it falls on deaf ears.

Gadawodd Jason anodiad ()

M Boyce, knowing this rotten bunch as we do, this news comes as no surprise.

I would do everything possible to make a big song and dance about the fact that they are perverting the course of justice. As the ICO may or may not be aware, conspiring with another to pervert the course of justice is also a criminal offence.

Gadawodd M Boyce anodiad ()

I'm certainly going to kick-off in a big way about all this. The PHSO and the ICO are making no effort whatsoever to disguise the fact that they are actively trying to undermine the Tribunal process, as follows:

The PHSO fail to send the ICO their commissioned external legal advice;

the ICO know that the PHSO have not sent them the external legal advice, and they know that this external legal advice was commissioned because I provided them with the proof of this;

the ICO then said they could/would not tell me whether the PHSO had in fact sent them the external legal advice, but were later forced to admit, via the FOIA, that they had not done so;

the PHSO then tell the Tribunal that I am trying to undermine the Tribunal process by asking for the Tribunal to be sent this crucial external legal advice so it can make a fair decision based on all the evidence;

the ICO then invite the PHSO to consider whether it now fancies supplying the Tribunal with the external legal advice or not. The ICO then state that the PHSO should decide themselves whether it considers the evidence to be relevant or not, and therefore whether to send it or not, and therefore whether the Tribunal should see it or not!

The PHSO and the ICO would be guaranteed winners on the Great British Sewing Bee - for their unrivalled stitch-ups.

Gadawodd J Roberts anodiad ()

Paragraphs 26 and 27 deal with procedural irregularity:

http://www.bailii.org/uk/cases/UKFTT/GRC...

If relevant material isn't included in the bundle the tribunal judge can direct that it be added:

"16. In his email of 12.10.19 the Appellant had asked that a copy of this information be placed in the bundle. In a CMD of 13.03.19 the Tribunal Judge directed that redacted and unredacted copies of the relevant entry be served, to be placed in the open and closed bundles respectively."

http://www.bailii.org/uk/cases/UKFTT/GRC...

Gadawodd M Boyce anodiad ()

So let's see if the PHSO volunteer this crucial evidence to the Tribunal or whether the Tribunal has to demand it.

Gadawodd M Boyce anodiad ()

In the ICO decision notice FS50748825 the commissioner states the following:

'There is a public interest in knowing whether or not legal advice has been followed.'

Yet the PHSO seem to deny this by stating in their submission to the Tribunal that:

'..there is no obligation on any client to accept or act on any legal advice provided..'

In the Quashing of reports FOIA response the PHSO state the following:

'To confirm, we discussed on the phone whether it was necessary to introduce a short-term urgent change in policy until we make a decision about the impact of the legal advice on policy.'

Why would the PHSO even consider a change in policy if the legal advice supported their current policy and practice?

You don't have to be a genius to read between the lines here. The PHSO commissioned legal advice about the legal status of the review process. That legal advice clearly indicated that the review process was not legally allowed. The PHSO then chose to ignore that advice, which they claim they are entitled to do. They then fail to provide that legal advice to the ICO and the Tribunal, and state that I am trying to undermine the Tribunal process by asking that the Tribunal receive all relevant information in order for it to make a fair decision. The ICO has also tried desperately to prevent this advice from reaching the Tribunal.

To quote again what the ICO have said:

'THERE IS A PUBLIC INTEREST IN KNOWING WHETHER OR NOT LEGAL ADVICE HAS BEEN FOLLOWED.'

Why does the ICO preach the right thing, but in practice always contrive to do the wrong thing?

Gadawodd A.E. anodiad ()

"There is no obligation on any client to accept or act on any legal advice provided"

Well, considering legal advice is to let you know whether you are acting inside the law or not, to ignore it would be staggeringly dishonest and potentially lead to such breaches of law!

Gadawodd M Boyce anodiad ()

The problem is that most legal advice does not offer total certainty on a legal issue: there is often wriggle room for some equivocation. I suspect that the legal advice strongly indicates that the review process is not legally allowed and is therefore ultra vires; but the PHSO then decided that it was not definitive and therefore they decided to continue with their current policy of reviews - their stated 'risk appetite'. To abandon their review process would have been very problematic for them - better just to ignore the legal advice and carry on regardless. After all, who would risk challenging them on this issue? And if they were challenged in the courts, and then lost, it's not a criminal matter, so they don't really care. But now they are being challenged at the First-tier Tribunal.

Trying to undermine the Tribunal process is not a good idea; not good for the PHSO and even less good for the ICO.
The paramount issue here is not whether the legal advice indicates that the review process is legally allowed or not, but how the PHSO have chosen to act with regard to this advice. This is an issue of trust, integrity and transparency - if the legal advice indicates that the review process is not legally allowed then the public have a right to know about this. Not just for the sake of transparency, but because knowledge is power. The review process is deeply problematic, as I have discussed at great length in previous submissions on here, and if it is revealed that it is indeed not legally allowed then a complainant cannot be compelled to use it, instead of going directly for judicial review. Not that going for judicial review is a great idea either, but the review process is just a completely unnecessary and almost certainly non-legal distraction and waste of time and money.

When all said and done this is a really messy issue and it needs sorting out once and for all, and this lack of transparency around it needs sorting out once and for all.

If we cannot trust the PHSO in their processes, then quite simply we cannot trust them in their decisions.

Gadawodd M Boyce anodiad ()

We trust that public bodies like the PHSO and the ICO will not act like complete hypocrites, but alas that trust is time and time and time again betrayed by them.
On the PHSO website they state the following under their 'Principles of Good Administration':

'...Public bodies must, of course, bear in mind the proper protection of public funds and ENSURE THEY DO NOT EXCEED THEIR LEGAL POWERS.'

How lovely. But, of course, the PHSO seem to have not realised, or they have completely forgotten, or they don't actually care, that they too are a public body. Why then does the PHSO not practice what it preaches?

The December 2017 Board Minutes again:

'Jon Shortridge asked about the legal status of CCT reviews, and what was the legal basis of a review if it did not constitute a new decision. Karl Banister explained that OUR LEGISLATION DID NOT ALLOW FOR REVIEWS.'

And the PHSO, aided and abetted by the ICO, are now trying to ensure that their commissioned legal advice never reaches the Tribunal. Surely this advice wouldn't show that they were again being hypocrites?

Well, there we have it. So much for ENSURING THAT THEY DO NOT EXCEED THEIR LEGAL POWERS. Not only does the PHSO exceed its legal powers, but it then has the brass neck to shout from the roof tops: do as we say, but not as we do. They regard themselves as untouchable and beyond the law.

This is how justice operates in this country.

Gadawodd M Boyce anodiad ()

Throughout both the PHSO's and the ICO's submissions to the Tribunal they repeatedly and forcefully state that I and others should go get their own legal advice on the issue of the legal status of reviews. But Houston, we have a problem, and a very big problem with their analyses. They both state that if their legal advice were made public then no lawyer would likely ever agree to provide honest legal advice to them again. Yes, they really do say that, time and time again. But where then does this leave me or any other member of the public who could actually afford to try and get their own legal advice on the legal status of reviews? By both the PHSO's and the ICO's perverse and ridiculous logic no lawyer would ever agree to provide me or any other member of the public with such legal advice, because obviously they would know that this advice would for certain be made public. There would be no point paying a fortune for legal advice on a very serious issue of significant public interest just to keep it secret, or to promise to keep it secret, and therefore be of neither use nor ornament. So why are the PHSO and the ICO telling me to go get my own legal advice when, according to them, they know that it would never be provided? Either way they are again not being fair and not being responsible. They are either not telling the truth about lawyers refusing to provide honest advice if they thought that this advice may be made public, or they are telling me to do something that they know would be a grotesque waste of time and money. I wonder which it is!

Gadawodd M Boyce anodiad ()

The General Regulatory Chamber (GRC) of the First-tier Tribunal have today issued new directions in my case ordering the PHSO to either send the Tribunal the withheld external legal advice or explain why it cannot or will not do so by June 24 2019.

Gadawodd Jason anodiad ()

Yes, and I suspect part of the reason you want to them to disclose the external legal advice is to ensure they are acting on their own legal advice, not the advice others may or may not have obtained.

Moreover, it is arguably unreasonable to expect the ordinary member of the public to fund the commissioning of further legal advice, at considerable cost, particularly as it is the taxpayer who has ultimately funded the PHSO's legal enquires.

I also don't buy the argument that the no solicitor will ever provide them with honest legal advice ever again following the disclosure. Indeed, any public authority could argue that in regards to public interest disclosures of this kind. What they are essentially arguing is the respective law is inherently disproportionate, which is not a matter for the Tribunal - that is a matter for lawmakers.

Well done for securing an order. I suspect the PHSO will still try and wiggle out of actually handing it over to the Tribunal. Things are certainly getting very interesting though. Keep us posted!

Gadawodd M Boyce anodiad ()

Thanks Jason.

Yes, the PHSO will almost certainly try and wriggle out of providing this external legal advice to the Tribunal. But this may not be easy for them. They may claim that they have 'lost' this legal advice, but even if this had happened, then the lawyers from whom it was commissioned keep copies of documents for a minimum of 5 years. The legal advice was commissioned in late 2016.

And even if the First-tier Tribunal do find that the public interest balancing test does favour withholding the legal advice, then I do have another card up my sleeve. This card is the FTT decision of Kessler v ICO (EA/2007/0043). Although the Tribunal found on balance that exemption outweighed disclosure, they did, however propose a remedy in their conclusion remarks. This remedy was to ask the authority to release a summary of reasoning/explanation of the legal advice. That is, the requester and the public get to see a reasoned summary of the legal advice, without the risk that full disclosure of all the minutiae may compromise the authority and the provisioning lawyers. The PHSO have failed to provide any such reasoned summary to date, and given that the Deputy Chair of the FTT considers that this represents a fair remedy in the case she decided, then it might be difficult for the Ombudsman to oppose this remedy being applied to them.

I would much rather see the full legal advice, but a proper reasoned and HONEST summary might well be acceptable. But my bet is that the PHSO would refuse even this compromise remedy, and for the simple reason that the legal advice almost certainly shows that the review process is not legal. Either way, the PHSO will be backed into a corner with this.

Gadawodd J Roberts anodiad ()

'This remedy was to ask the authority to release a summary of reasoning/explanation of the legal advice.'

A recent UT decision (Judge Jacobs) you might be interested in:

"16. I have been asked to say whether the ‘public authorities are necessarily required to make submissions that refer explicitly to the content of the withheld information.’ The underlining is in the original. I decline that invitation. First, because public authorities are not required to make any submissions; what they say is a matter for them."

('necessarily required' is the phrase underlined)

http://www.bailii.org/uk/cases/UKUT/AAC/...

Gadawodd M Boyce anodiad ()

Thanks for that J Roberts.

It's clear that the Tribunal cannot, outside of ordering disclosure of the withheld legal advice, MAKE an authority disclose a summary of the legal advice. But, they can clearly ASK for an authority to do this if this would provide an equitable compromise. If the authority were to refuse this request, then that in itself would raise the question of why would they refuse this. In the case of the PHSO, they claim that transparency in and around their processes is of paramount importance. If that were so, then why would they refuse to meet, at least half way, their supposed commitment to transparency?
Throughout the PHSO submission to the Tribunal they claim that if they revealed their legal advice on the legal status of reviews then that might prejudice them if anyone were then to take the issue for judicial review. But they also state that the issue of the legal status of reviews can only be decided by judicial review!
Why then do they fear so much that which they advocate?

Gadawodd M Boyce anodiad ()

I've now decided that I am going to ask the PHSO in my third submission to the Tribunal if they would now consider providing a full summary of their advice with a clear conclusion of their commissioned external legal advice, bearing in mind the advice from the above Tribunal. If they agree, then the Tribunal can compare this summary with the withheld legal advice and then decide whether it is both accurate and whether it would suffice for the purpose of transparency and justice or whether the withheld advice should be disclosed.
Does anybody think this sounds fair?

Gadawodd Jason anodiad ()

Certainly sounds fair and reasonable to me.

Gadawodd M Boyce anodiad ()

Thanks Jason

I will stress to the Tribunal that I obviously would MUCH prefer disclosure of the entire legal advice, but that a full and clear reasoned summary with definitive conclusion PRIOR to the Tribunal decision should suffice if it is truthful.

Gadawodd J Roberts anodiad ()

No harm in asking. The judge may think that an accurate summary or gist would contribute to transparency without undermining the client/lawyer relationship. Have you any idea when your appeal willl be heard - this year or next?

Gadawodd M Boyce anodiad ()

Thanks J Roberts.

The date for final submissions of all parties is now 22 July 2019. Obviously no hearing date yet as the Tribunal may have to issue a third direction ordering the PHSO to submit the vital evidence and to stop them sending irrelevant/misleading evidence as a distraction tactic.

Gadawodd M Boyce anodiad ()

In the PHSO's published guidance: 'Principles of good administration' they state:

'Public bodies MUST NOT exceed their legal powers.'

But then in their December 2017 Board Minutes they state:

'The review process is not legally allowed.'

But then they decide to continue to do that which, by their own admission, is not legally allowed.

How can we expect the PHSO to hold public bodies to account when it cannot even account for its own behaviour?

So much for trust and transparency.

The First-tier Tribunal now currently has three cases listed against the PHSO - all made within the last three months or so. All three concern the PHSO's acting beyond their legal powers - which they demand that other public bodies must not do!

Mmm.

Gadawodd Jason anodiad ()

Yes, I think that 'Principles of good administration' document is not worth the paper it is written on.

As for the PHSO in general, it seems like the megalomaniac lunatics are now running the asylum (just my opinion).

Gadawodd Jason anodiad ()

Any further news, M Boyce? Has it got to the point yet where the PHSO have submitted another feeble excuse for not handing over the advice and complying with the Tribunal order?

Gadawodd M Boyce anodiad ()

No further news at the moment. The Tribunal have given the PHSO until 24 June 2019 to either supply them with the external legal advice and explain why they didn't supply it earlier, or explain why they cannot or will not supply this information.
I will ask the Tribunal to let me know what the PHSO have decided to do by that date. If the Tribunal process is to be fair then I have to know whether this information has or has not been supplied by that date and the full reasons surrounding this. I need to know what is going on here as I can make one further submission to the Tribunal before 22 July 2019, and obviously I would like to make comment on whether the external legal advice has or has not finally been sent and the reasoning supplied alongside this.

Gadawodd M Boyce anodiad ()

Very few section 42 FOIA appeals ever succeed with the First-tier Tribunal. Why is this? One of the reasons is that the ICO does not ask an authority (e.g. the PHSO) to send it ALL of the withheld legal advice. They merely ask them to send 'the withheld legal advice' and ask the authority to decide for themselves what legal advice to send. This allows an authority to cherry-pick the information which supports its case and to hide that information which does not. Even when you explicitly inform the Information Commissioner's Office that an authority is cherry-picking the information, the ICO just ignore you. They only listen when you inform the Tribunal as to what is going on. How many of the hundreds of section 42 appeal cases would have succeeded if the authority had been made to supply the Tribunal with ALL the relevant information by the ICO? We will never no, but it is likely to be a significant number. After all, the Tribunal can only make decisions based on the information that the ICO puts before them.

Gadawodd Jason anodiad ()

Yes, that does not surprise me at all, particularity as we are all acutely aware of the way these organisations operate.

Gadawodd Jason anodiad ()

The ICO never ceases to amaze me. I recent reported a concern to them regarding my GP Practice and incomplete medical records. The advise they gave my GP Practice, which I have in writing from the Practice, is now completely the opposite approach they have taken in regards to dealing with my concern report.

I have now sent them a copy of that letter and asked them to explain themselves.

They really are a hopeless bunch...

Gadawodd M Boyce anodiad ()

I think the ICO are much more than just hopeless - they are unashamedly biased in favour of authorities, and the thousands of published DN's clearly show this. They are also contemptuous of the Tribunal process. My experience, and the experiences of others too, shows that the Commissioner, at least sometimes, actively works to undermine the Tribunal process by trying to ensure that it never gets to see the crucial evidence, or alternatively they misrepresent the evidence. When this happens they are never held to account for this by the Tribunal - not even the slightest censure or rebuke.
When there is no accountability, there can be no justice or fairness.

Gadawodd Jason anodiad ()

Yes, very succinctly and accurately put. I am in total agreement.

What a sad state of affairs we find ourselves in.

Gadawodd M Boyce anodiad ()

Thanks Jason.

Tomorrow is D-Day. The Tribunal have given the PHSO until 24/06/19 to either send it the withheld external legal advice and explain why it did not do so earlier, or explain why it cannot or will not do so.
Obviously, if the PHSO do send the external legal advice then I won't get to see it at this stage, but I have asked the Tribunal, in the interests of justice, transparency and fairness, to let me know what reasons the PHSO has supplied regarding either late sending or no sending of this information.

Gadawodd Jason anodiad ()

Things are certainly getting very interesting, M Boyce.

I suspect the PHSO will do anything and everything possible to keep hiding the advice, but may be forced to accept they are now scuppered. You certainly have them in a rather uncomfortable position though.

Keep us posted!

Gadawodd M Boyce anodiad ()

OK, as fully expected the PHSO are continuing to play their dirty tricks.

They have now asked the Tribunal to keep me in the dark about whether or not they have now sent the Tribunal the withheld external legal advice.

The Tribunal are now deciding whether the PHSO's request should be granted or not.

Needless to say I will have zero confidence in the Tribunal process if the Tribunal does allow the PHSO to further undermine proceedings in this way.

I would hope to hear from the Tribunal's Registrar, who has delegated authority from a judge, by the end of this week.

Gadawodd Jason anodiad ()

That sounds like pretty typical conduct from the PHSO and their ilk to me.

How on earth is that meant to be conducive to a fair and transparent process?

Gadawodd M Boyce anodiad ()

It's not conducive to a fair and transparent process.

The very essence of the Freedom of Information Act is transparency in and access to information held by public authorities and which is in the public interest. The WDTK site is such a valuable resource because it powerfully promotes this transparency for the public good. And that is why I have chosen to document this ongoing FOIA request in such detail. The FOIA, WDTK, and the First-tier Tribunal are all built on the premise of openness and transparency. If the public cannot see justice being done, then how do we know justice is being done?

Ultimately the Tribunal will decide in this case whether it is in the public interest that transparency prevails or does not prevail.

Gadawodd J Roberts anodiad ()

The PHSO does not seem wedded to the idea of transparacy. This recent Commissioner's Decision concerns Section 31(1) of theFOIA (the prevention or detection of crime). Read about 'malicious actors', 'cyber trolls' and 'spear phishing':

https://ico.org.uk/media/action-weve-tak...

Gadawodd M Boyce anodiad ()

I agree that the PHSO are certainly not wedded to the idea of transparency. In the case you have provided a link to, I do think, however, that withholding information about the PHSO's security guidance and security operating processes does not seem unreasonable. Although there is clear value in the public knowing how secure these systems may be, there is also a real risk that this information could be misused by those with malicious intent. The same or similar argument cannot be made with regard to the PHSO's review process. The lack of transparency here serves only the PHSO and no-one else.

Gadawodd Jason anodiad ()

Any idea when the Tribunal may reach a decision on this recent issue, M Boyce?

I would have to agree that if the Tribunal accede to this very dubious request from the PHSO, I also have zero confidence in the Tribunal process. This said, based on my experience with Employment Tribunals, I know how they tend to bend over backwards for organisations. I have had many shocking experiences in that regard, which has certainly compounded and solidified the sense that there is very little or no justice for the ordinary person.

Gadawodd M Boyce anodiad ()

I would expect it would be sometime this week, as time for final submissions is now short.

All any of us can do is hope that the Tribunal process will be fair for all parties. If I didn't believe that this was possible then I wouldn't put the case before them.

Gadawodd Jason anodiad ()

Okay, let us know when you hear something further.

Yes, I share you hopes and am obviously am rooting for you, but I have a very dim view of the judiciary as you know.

As you have said before though, if we lose this battle, the war against this rotten bunch must certainly go on.

I have just heard more regarding my concern report to the ICO regarding my incomplete medical records. They are now disputing the advice given by their advice line to both the GP Practice and myself. So, they can't even agree with themselves.

To make matters worse, they now purport that Art. 16 GDPR requires the GP Practice to do the following in circumstances where information is missing from my medical records:

"It is our view that it is for you to provide the supplementary statement which would indicate that you disagree with information in your records and the reasons why." (sic)

So, essentially, they are purporting that I should ask for a note to be added to the medical record stating that I disagree with the information that is not in my medical records, without even knowing what that information is or should be. You would really think that common sense would tell them that in order to disagree or agree with something, you actually need to know the fact(s) or opinion(s) that you may or may not agree with.

I truly despair with this lot.

Gadawodd Jason anodiad ()

I am assuming that no person can be that half-witted, so I am putting that down to yet another case of absolutely shameless bias.

Gadawodd M Boyce anodiad ()

Yes I totally agree.

Gadawodd M Boyce anodiad ()

And then we have this hypocritical nonsense from the PHSO:

https://ico.org.uk/media/about-the-ico/d...

The ICO says that openness and access to information is key to a healthy democracy, and yet they then act to promote secrecy and deny access to information.

There is more spin at the ICO than at a washing machine conference.

Gadawodd J Roberts anodiad ()

Latest PHSO judical review (dismissed):

http://www.bailii.org/ew/cases/EWHC/Admi...

Gadawodd Jason anodiad ()

M Boyce, yes, that is yet another classic. What a total charade...

J Roberts, not surprising to see yet another JR brought by an ordinary member of the public being dismissed.

Gadawodd J Roberts anodiad ()

M Boyce,

From the report you cited:

'We will achieve our ambition by:

ensuring that access to information rights is upheld in a consistent and timely manner and operates effectively in a digital age;'.

Anyone with a little knowledge of the ICO in practice is likely to doubt that the 'ambition' will ever be realised.

Gadawodd M Boyce anodiad ()

Thanks J Roberts.

My ambition is to win the jackpot on the Euro Millions lottery. An ambition that is much more realistic than the ICO's ambition.

In terms of the recent PHSO JR you have provided a link to above, in my case the important paragraph is 24:

'Section 3 (2) [of the Health Service Commissioner's Act 1993] provides that in 'determining whether to initiate, continue or discontinue an investigation under this Act, the Commissioner shall act in accordance with his own discretion'. I accept the Defendant's [PHSO] submission that this encompasses any decision about the scope of an investigation..'

It is not clear whether the appellant asked the PHSO for a review of their final decision (report).

The PHSO always maintain that a review is not an investigation. It remains completely unclear how you can review a decision without investigating it. Perhaps you could pull funny faces at it instead?

If common sense prevails and you accept that a review is a further investigation, and not just a face-pulling competition, then the judgement above makes it clear that that judge would regard a review as legally allowed for. This view accords with what the PHSO have stated in response to Nicholas Wheatley's (via phsothe facts) FOI request as referenced many times above. Both conflict with what the PHSO said in their December 2017 Minutes, the Dyer High Court judgement, and what is almost certainly said in the withheld external legal advice: the review process is not legally allowed for.

In almost every case that the First-tier Tribunal have ordered disclosure of the withheld legal advice the crucial reason was because of a lack of transparency in the authorities actions or advice. There could be no clearer lack of transparency than in the legality or otherwise of the PHSO review process.

Gadawodd Jason anodiad ()

"My ambition is to win the jackpot on the Euro Millions lottery. An ambition that is much more realistic than the ICO's ambition."

That certainly made me chuckle. Yes, it doesn't take much to scratch a little beneath the surface to see the ICO for what it is, and it is certainly not a pleasant sight.

Regarding the other points, yes, I totally agree. When one also weighs in the fact that the PHSO is the only point of redress for most people, some very vulnerable, in regards to serious healthcare wrongdoings etc. then the issue of the legality of the review process becomes a profoundly serious issue. Indeed, if the current review process is unlawful, which of the face of it is, then this makes a complete mockery of the principles of natural justice the PHSO is meant to adhere to.

Gadawodd M Boyce anodiad ()

Today the Tribunal have informed me that the PHSO has now FINALLY sent it the withheld external legal advice. The PHSO were kicking and screaming as it was prised out of their hands. Both the PHSO and the ICO now have until 22 July 2019 to explain to the Tribunal and to me why they thought it was such a clever idea to try and fool me and to try and undermine the Tribunal process in this way.
Is it any wonder that most appeals to the First-tier Tribunal do not succeed when the authority, aided and abetted by the ICO, do every thing they can to try and prevent the Tribunal from seeing crucial evidence it needs to see for it to make a fair and balanced decision?
Most complainants would assume that the PHSO would send the Tribunal all the relevant documents it requests and needs.
If we cannot trust the PHSO to be straight with the Tribunal then what chance is there of the PHSO ever being straight and honest with complainants?

Gadawodd Jason anodiad ()

That sounds like a very positive step forward, M Boyce. It seems we may get at least a crumb of justice here.

Yes, the PHSO and the ICO are one seriously dubious bunch who will do anything and everything to avoid being held to account. Seems they couldn't lie straight in bed.

It would certainly be very interesting to get a sense of what they have been trying so desperately to hide.

Well done in all your efforts.

Gadawodd M Boyce anodiad ()

Thanks Jason. Yes it is a very positive step forward.

Everybody knows that the PHSO and the ICO cannot be trusted and the ICO is hugely biased in favour of authorities. But, knowing this and proving this are two different things. Sometimes you do get proof, as in my case.
It is difficult to overestimate the importance of all this: both the PHSO and the ICO have tried desperately to undermine the Tribunal process. If this happened in a court of law (and remember Tribunals are also headed by judges) those responsible for attempting to pervert the course of justice could face a custodial sentence.
I was very lucky because I could show (thanks to the Nicholas Wheatley FOI request) that the PHSO had indeed commissioned external legal advice on the legal status of its review process and were trying to hide it (and aided by the ICO). What would have been the chance of the PHSO supplying the Tribunal with this advice on trust? The answer is zero. Remember too that the PHSO are fighting like rats in a sack to try and persuade the Tribunal that I am trying to undermine the Tribunal process for asking for the Tribunal to be provided with all the relevant information! This must also apply to other authorities - they will simply not send the Tribunal the crucial evidence, and the ICO not only does not ask them to do so, but then works to try and prevent crucial evidence reaching the Tribunal.

The whole system is thoroughly rotten.

Gadawodd M Boyce anodiad ()

For any public authority to work fairly and effectively it needs to be subject to rigorous checks and balances. For the PHSO these checks and balances are basically PACAC and the ICO, and then ultimately the First-tier Tribunal. The PHSO time and time again uses its statutory 'wide discretion' to effectively do whatever it wants and with total impunity - including acting beyond its legal powers. But this 'wide discretion' does not and cannot ever allow them to act beyond their legal powers. Both PACAC and the ICO have allowed the PHSO to act beyond their legal powers and therefore these checks and balances have failed. Without rigorous checks and balances in a liberal democracy you have no liberal democracy - just a dictatorship masquerading as one.

Gadawodd phsothefacts Pressure Group anodiad ()

Well said M Boyce.

Gadawodd Jason anodiad ()

Totally agree, M Boyce.

I think the PHSO and ICO really underestimated your skill, tenacity and diligence (e.g. the Nicholas Wheatley FOI request) and have now been caught with their pants down.

It is also very rich that they accused you of trying to undermine the Tribunal process.

All this, of course, makes a complete mockery of the PHSO and ICO’s impartiality and sound judgement, which it purports to have, as you say.

I think, if successful in all this, you should go straight to the press, as this is certainly information that the taxpayer should see.

Gadawodd M Boyce anodiad ()

All parties final submissions are due by 22 July 2019. I will then get to see what both the PHSO and the ICO have to say before the Tribunal then get to consider the case in the coming months.

Although all this stems from my own individual complaint, it has mushroomed far beyond that. It now goes to the very foundation of the PHSO as an organisation; and that foundation is trust. The more you dig down into this Ombudsman the more you discover the ugly truth that they can never be trusted. I am increasingly astonished at the lengths to which the PHSO will go to try and defeat entirely reasonable and legitimate concerns that the public bring to them. It is an organisation that has now become so ossified, so defensive, so invested In its own supposedly unlimited and uncircumscribed power that it has become completely blind to what is fundamentally right and what is fundamentally wrong. This organisation can never change because it simply cannot see right for wrong: every complainant is always wrong and they are always right. And that is not because they are always right, but because when an organisation can never be effectively challenged then it believes that it should never be effectively challenged. There is no meaningful dialogue here, no discussion about remit - only a concerted effort to shut-down dialogue and any legitimate challenge to their 'wide discretion'.
Any new Public Service Ombudsman may offer new hope, or it may not, but it is unlikely to be worse than what we have now. The public deserve an Ombudsman that is prepared to listen and change and not just ignore and entrench. And for that reason the PHSO must go.

Gadawodd A.E. anodiad ()

On the basis of this, which is added to misconduct towards complainaints all over the place by PHSO, I would say this is grounds to challenge PHSOs wide discretion due to abuse of powers. There has to be a petition in this at the least.

Gadawodd M Boyce anodiad ()

A.E., a petition sounds like a good idea, but I'm not sure whether it would work in practice. For any petition to have any leverage it needs to get a large number of people signing it. Most people don't know what the PHSO is up to and to be honest probably don't care unless it directly affects them. Things don't get changed in this country partly because people can't be bothered to change them.

You say that there is 'grounds to challenge PHSO's wide discretion due to abuse of powers.'

Yes, and that is what my case is aiming to do. The problem is the statutory legislation does confer on the PHSO wide discretionary powers. This wide discretionary power is not defined or explained and that is why the Ombudsman can conduct investigations ALMOST as it likes. The key word here is almost.

In the Dyer High Court judgement it stated the following:

'Section 5(5) , as already indicated, confers a wide discretion indeed; it does not, however, purport to empower the PCA to re-open an investigation once his report is submitted.'

The PHSO have been playing a game with semantics for many years, and that game is stating that a review is not a re-opening or an investigation. But what is a review if it is not a re-opening or an investigation? The PHSO claim it is merely a checking exercise to see if they did anything wrong. But by definition you cannot check whether anything was wrong with a final report unless you re-open a final report and then do an investigation. You simply have to investigate what went wrong. The PHSO is arguing, against Shakespeare's famous phrase, that a rose is not a rose if you call it something else. According to the PHSO a rose is not a rose if you call it a lemon, and a review is not a re-opening of an investigation if it is called a checking exercise.

The PHSO's wide discretion is not so wide that it allows them to act beyond their legal powers by playing silly-beggars with words. That would be like a defence lawyer claiming that their client could not be convicted of committing a murder that he had clearly committed because that client and lawyer had decided to call murder a lemon instead!

Gadawodd Jason anodiad ()

Absolutely agree, M Boyce.

Yes, I think in order for any “review” to be fair and reasonable it needs to reconsider all the facts and matters relating to the original investigation. It simply can’t do that without conducting some kind of investigation or reinvestigation, albeit an ad-hoc one, no matter how the PHSO chooses to dress the review process up.

I remain firmly of the view that the review process is nothing but a cynical attempt to undermine any complainants ability to bring a Judicial Review challenge, which would also explain, albeit in part, why no ordinary member of the public has brought a successful challenge. The PHSO are also intimately aware that the judiciary will expect the complainant to exhaust all lines of complaint. I think what the PHSO is therefore doing is forcing complainants to show all their cards, so to speak, by way of the review request, so the complainant is left in the position where he/she can only challenge the rationale. Of course, challenges brought on the grounds of perversity/irrationality almost never succeed, particularly in circumstances where the judiciary is going have a strong deference to the PHSO, and no right-minded person would want to run the legal costs risk.

Gadawodd A.E. anodiad ()

I'm very glad your case is aiming at that. It's worth remembering that in Miller v PHSO JR, the judge stated:

"The standard chosen by the ombudsman is beguilingly simple but incoherent. It cannot provide clarity or consistency of application to the facts of different cases. There is no yardstick of reasonable or responsible practice but rather a counsel of perfection that can be arbitrary. It runs the risk of being a lottery dependent on the professional opinion of the advisor that is chosen. It is unreasonable and irrational and accordingly, unlawful."

http://www.bailii.org/ew/cases/EWCA/Civ/...

Some interesting comments by the judge in that case where it basically says if PHSO use a different standard than what they have published, that "But then if the practice has been to publish the current policy, it would be incumbent upon him in dealing fairly to publish the new policy, unless again that would conflict with his duties." so they can't just arbitrarily decide off the top of their head each time which standard they will follow, without notice.

So wide discretion isn't a license to do as they see fit.

Gadawodd M Boyce anodiad ()

I agree that wide discretion is not a license for the PHSO to do whatever they see fit. Unfortunately the PHSO do see it that way, and so to a large extent do the ICO and much of the judiciary.

Gadawodd A.E. anodiad ()

Completely agree, but that is a legal judgment that's on the record and can be used. Clearly states abuse of wide discretion is unlawful.

Gadawodd M Boyce anodiad ()

https://ico.org.uk/media/action-weve-tak...

And today we have the above truly extraordinary decision published by the ICO. It is one of the few cases of section 42 - legal professional privilege - that has been upheld by the ICO. But what makes it so unusual is what it states in paragraph 34:

'The complainant did not offer any reasons why he considered it would be in the public interest to disclose the requested information.'

The burden of proof that disclosure is in the public interest lies with the complainant. Normally no matter how persuasively a complainant argues that disclosure should occur, it is not often that the ICO agrees. Here they have agreed with themselves on something that they would never ever normally do!
In the above DN it states:

'..the Commissioner does not consider that the public interest considerations need to be exceptional in order to overturn [override] the strong public interest in maintaining the exemption [legal professional privilege].'

Yet in my DN it stated:

'Only in very exceptional cases can this [legal professional privilege] be overridden when considering where the public interest lies.'

The senior case officer in my case states the above in all her section 42 decisions - without variation and without exception.

The ICO is an organisation that is so dysfunctional and schizophrenic that some days it is Arthur and other days it is Martha. There is no logic and no fairness to their cavalier and capricious decisions.
The ICO uphold about 1 in 70 of their section 42 decisions, and when appealed to the Tribunal this translates to about 1 in 15 upheld. Can this really be described as 'very exceptional'? 1 in a thousand or 1 in ten thousand might be very exceptional, but not 1 in 15.

Gadawodd A.E. anodiad ()

Just goes to show that they act completely arbitrarily, same as PHSO and that it boils down to what they personally agree with exempting or otherwise, no matter what the actual law itself is or whether it is being misused!

Gadawodd J Roberts anodiad ()

M Boyce,

"42. She considers that there is a strong public interest in understanding the advice which the CPS received in relation to compelling the Sovereign to appear as a witness in criminal proceedings which is still considered current. The Commissioner is not aware that the CPS has published a policy or any guidance on this issue."

The above paragraph caught my eye.

Gadawodd M Boyce anodiad ()

Yes A.E. you have summed it up with the word arbitrary. We know that both the PHSO and the ICO are ideologically and, particularly at the top level, biased in favour of the establishment. But most of the decisions are taken by low level case-workers, and of course they are all individuals with their own views on matters. Some will be more understanding than others, some will be more intelligent than others, some will be more thorough than others, some will be more lazy than others, and so on. Each case-workers decision is then presented as the decision of the Ombudsman or the Commissioner respectively. But of course this a purely delegated and largely personal decision. Each case-worker clearly works according to their own personal 'script'. You can't see this with the PHSO because they don't publish their cases, but the ICO of course do publish their decision notices and the names of the case-worker. If you look at any particular case-workers decision notices you can clearly see their individual signature style or script and this illuminates their particular preferences and prejudices.
With regard to section 42 of the FOIA some case-workers think that legal professional privilege can only be overridden in very exceptional cases and other case-workers do not agree and instead they follow what the FOIA 2000 actually states and that is that disclosure should occur if the public interest in disclosure outweighs the public interest in exemption, and nothing else.

So we have institutional bias driven down the ranks by the top brass coupled with a wide arbitrariness in decision-making by the case-workers that combines to create a highly dysfunctional and unfair pairing of the PHSO-ICO collective.

Whether you receive a fair decision by the PHSO and/or the ICO is little more than a lottery: if you get lucky - very lucky - you may just get some justice. Surely we all deserve much better than this.

Gadawodd M Boyce anodiad ()

https://www.whatdotheyknow.com/request/u...

Let's see if the ICO can be bothered to explain why some of their case-workers follow section 2 of the FOIA with regards to section 42, and why some case-workers unfairly import exceptionality into the FOIA where it not stated, not justified and not fair.

So we have the ICO deliberately misinterpreting the FOIA and we have them deliberately trying to undermine the Tribunal process by trying to make sure that the Tribunal is denied all relevant information.

Good old ICO: first they try to undermine the FOIA, and then they do the same with the Tribunal. Don't you just love em!

Gadawodd Jason anodiad ()

Indeed, M Boyce.

As you know, it has also been my experience that the ICO can't even agree with themselves on the simplest of issues.

I am beginning to consider that organisations like the ICO and the PHSO are there to exercise bias in favour the government/establishment. They may not have been set up that way, but they have certainly turned into a monster. They may have a very few amount of employees (and I mean very few) who are willing to act in the best interests of the taxpayer, or at least look at things somewhat impartially, though it certainly strikes me that they have been mainly browbeaten and coerced their employees into exercising bias in favour of the government and government agencies.

One thing I have also learnt is that as soon as you expect the Ombudsmen or ICO etc. to think and exercise some nous and/or diligence, your complaint or concerns are doomed to fail. In other words, if there is wiggle room for bias, that is exactly what you will get in the vast majority of cases.

Gadawodd Jason anodiad ()

Did you ever get an explanation as to why the ICO and/or PHSO tried to fool and deceive you and the Tribunal by deliberately withholding the respective legal advice, M Boyce?

Gadawodd M Boyce anodiad ()

Jason, the Registrar at the Tribunal has told the PHSO and the ICO that they must make final submissions to the Tribunal by 22/07/19 explaining why they tried to prevent the Tribunal receiving the crucial withheld external legal advice. They have been told that these submissions should be open and not closed unless deemed necessary. That means that I should get to see their explanations if they deem it necessary. Obviously the PHSO and the ICO are going to state that it is not necessary that I know what is going on. I also won't know what is decided until it is too late, as my final submission to the Tribunal must also be made by 22/07/19. So the comedy double act that is PHICO will almost certainly concoct some cockamamie excuses why I should be kept in the dark about all this. It will be fascinating to find out what these are - if I'm allowed to know!

Gadawodd M Boyce anodiad ()

https://www.ombudsman.org.uk/sites/defau...

I nearly choked on my Frosties when I read this. 'The CQC lacks openness [transparency] and accountability.'

Yes, Mr Behrens, and they are not the only one's, are they?

Gadawodd Jason anodiad ()

Yes, the words 'pot', 'kettle' and 'black' come to mind.

Gadawodd M Boyce anodiad ()

Today is the publication of the PHSO's 2018-19 Annual Report. In that report they repeatedly crow about their exemplary transparency. This is nothing more than a really bad joke.

Several weeks ago the Tribunal asked both the PHSO and the ICO to fully explain why they refused to supply it with the PHSO's commissioned external legal advice about its review process. That explanation was due today. In the interests of transparency I was supposed to have been informed of these explanations. This has not happened, so I am now going to contact the Tribunal again to try and find out what is going on.

Gadawodd Jason anodiad ()

Indeed, M Boyce. As the saying goes, you can fool some of the people all the time, but you cannot fool all the people all the time. The manner in which the PHSO treats the general public never ceases to amaze me.

It seems the PHSO are now also treating the Tribunal with contempt too. What a truly rotten bunch…

Let us know if you hear anything more.

Gadawodd M Boyce anodiad ()

Thanks Jason, I do appreciate your continued support.

I am going to quote exactly from the PHSO's last submission to the Tribunal (22/07/19), because it is of such magnitude and public importance. In paragraph 9 they state:

'If the Appellant does not concur with any such process [the non-legally allowed review process], then there are appropriate methods of challenge [judicial review may be possible] but it is NOT APPROPRIATE, NOR INDEED POSSIBLE, to use the Freedom of Information Act provisions to do so.'

Not appropriate and not possible to use the FOIA to challenge self declared non-legal behaviour by the PHSO!!!!!!
Firstly, if it not was not possible, then how am I managing to do the impossible? Perhaps for my next trick I should make the PHSO tell the truth for once - now that would be IMPOSSIBLE!
Secondly, if it was inappropriate, then why is it inappropriate? Just because it may be possible to judicially challenge the PHSO's self-professed non-legal behaviour that does not preclude recourse to the FOIA - as the ICO have themselves clearly stated in their published information on section 42 of the FOIA. What is inappropriate is the PHSO's continued attempts to shut-down the FOIA to avoid its legal duty to stick to the law, and not exceed or flout it.

Gadawodd M Boyce anodiad ()

And coincidentally we have the following decision by the Information Tribunal published today:

http://informationrights.decisions.tribu...

In paragraph 59 of the above it states:

'...the fact that there may be other means [of challenge] through which Mr Rattray is free to ventilate his concerns does not warrant an outcome DENYING HIM ACCESS TO FREEDOM OF INFORMATION.'

Yet the PHSO say that the First-tier Tribunal is wrong and that it is IMPOSSIBLE for the public to use the FOIA to challenge the wrongdoing of this pernicious organisation.

Gadawodd Jason anodiad ()

Yes, the usual ducking and diving from the PHSO. I would expect nothing less from that lot.

Indeed, there is more than one way to hold public authorities to account. If the PHSO disapproves of that (which comes as no surprise) then I am afraid that it tough luck.

Gadawodd Jason anodiad ()

Moreover, could the fact that the PHSO are not following their own external legal advice not be relevant for the purposes of a Judicial Review in regards to these matters (a challenge brought on the grounds of ultra vires)? It would be difficult to see how it could not be.

Gadawodd M Boyce anodiad ()

Yes Jason. But judicial review is very risky (expensive).

If the external legal advice does show - on balance, and not necessarily definitively - that the review process is ultra vires/not legally allowed, then of course it would probably make JR of the issue, either on its own or as part of a specific case, more likely. The PHSO say this would prejudice them; yet they tell me and others to do just that!

Gadawodd J Roberts anodiad ()

M Boyce,

Thanks for posting a link to the Rattray decision, which seriously questions the judgement of the Commissioner on the application of the public interest test. The onus is on the public authority to show that the test applies:

"20. We note with some consternation that our understanding of the statutory framework seems incompatible with the Commissioner’s written case. As we have recorded, she contends that the appeal should be dismissed on the footing that the public interest favours maintaining the exception. On our reading of reg 12, the public interest test does not arise at all unless and until the public authority shows that the exception is applicable. This divergence has caused us anxiously to examine our thinking afresh. Having done so, and with diffidence, we stand by it."

Similarity of EIR with FOIA:

"22. In Craven v Information Commissioner and Department for Energy and Climate Change [2012] UKUT 442 (ACC) the Upper Tribunal (‘UT’) (Judge Nicholas Wikeley) held thatthe tests under s14(1) and reg 12(4)(b) are to all intents and purposes the same."

The Commissioner's Guidance suffered a heavy knock:

"25. We likewise note the Guidance but our interpretation of the law is founded onthe statutory language and relevant decisions of the higher courts."

It is deeply distubing to read that the Commissioner's Guidance isn't up to scratch.

Gadawodd M Boyce anodiad ()

Thanks for highlighting these important points J Roberts.

Many ICO caseworkers, just like many PHSO caseworkers, simply do not know what they are doing and/or couldn't care less. Both the PHSO and the ICO always stand by the poor decisions of their caseworkers, even when taken to Tribunal. They rely on deceit, cover-up and their firm belief that their decisions are 'always in the bag'.
Both the PHSO and the ICO also never ever learn from their bad/poor decisions when the Tribunal finds against them. My case is a good example. The FTT have repeatedly told the ICO that section 42 cases do NOT have to be 'very exceptional' for disclosure, just that the public interest in disclosure has to be as strong or stronger than the public interest in exemption. But some ICO caseworkers continue to repeatedly ignore the Tribunal with total impunity and with total disregard for natural justice.

Gadawodd J Roberts anodiad ()

"Our role is to uphold information rights in the public interest." ICO

Not in your case, it would appear.

A judge's take on the word 'exceptional' (criminal justice):

'16. So the principal question I have to answer is whether there is such clear evidence of exceptional and unforeseen progress as may reasonably be judged to call for reconsideration of the applicant's minimum term. This is a high threshold. The phrase "exceptional progress" means what it says. Progress which is "very good" or even "excellent" will not necessarily meet the test of "exceptional progress".'

http://www.bailii.org/ew/cases/EWHC/Admi...

And you have the word "very" to contend with as well!

Gadawodd M Boyce anodiad ()

https://ico.org.uk/media/action-weve-tak...

Notice how the above recent case also does not have to contend with the word 'very'. In the above case the ICO says that disclosure of legal advice should occur because the public interest in favour of disclosure is 'exceptional. Yet the caseworker in my case said that disclosure should only ever occur in 'very exceptional' cases.
So the ICO caseworkers use a sliding-scale on disclosure depending on who you get as caseworker:

Very exceptional

Exceptional

Stronger arguments for disclosure over exemption

Merely equally strong arguments for disclosure over exemption

This sliding scale of complete arbitrariness is profoundly unfair and I intend to rigorously and exhaustively challenge the ICO over this.

Gadawodd M Boyce anodiad ()

And paragraph 36 of the above ICO decision notice is interesting:

'.....You seek the legal advice - and you can take it or not take it - but I think most people take the advice of QC's, especially if you're a regulator.'

Most people, but not the PHSO!

In their response to my appeal they stated:

'....Legal advice is just that: advice. It is not legally binding; there is no obligation on any client to accept or act on any legal advice provided...'

That says it all: the PHSO commissioned external legal advice from a QC, they didn't like what it said, so they decided to ignore it.

They may be 'entitled' to do that, but they are not entitled to then refuse to publicly disclose this advice that challenges their non-legal behaviour. It is strongly in the public interest if an authority ignores commissioned legal advice, especially when that legal advice states what they are doing is not legally allowed.

Gadawodd Jason anodiad ()

Indeed, M Boyce. Also, how is a member of the public meant to determine the correct test regarding disclosure? What a charade...

Yes, I don't think the PHSO likes advice that goes against it's unethical and power-crazed agenda.

Another bit of news that may make you chuckle:

https://www.lawgazette.co.uk/legal-ombud...

Gadawodd M Boyce anodiad ()

Yes Jason, it just goes to show what an omnishambles these Ombudsmen organisations really are.

Today I was informed by the Tribunal that if the PHSO want the Tribunal panel to consider ALL of its latest submission, then I must also be informed of SOME of this submission. Basically, the PHSO want the Tribunal and the ICO to see some of the evidence that they have cherry-picked for them, but they want me to be kept completely in the dark about everything - most notably, the reason or reasons why they tried to hide their external legal advice from the Tribunal.The PHSO have until the third week of August to decide.

Gadawodd Jason anodiad ()

Yes, omnishambles is putting it mildly.

I see. So it looks like the PHSO will undoubtedly, true to form, try every dirty trick in the book until your case is concluded, all whilst billing the taxpayer hefty amounts for this.

I do truly hope you manage to get some clarity and success in all this. I think one cannot underestimate the importance of these types of disclosures.

Keep us posted!

Gadawodd A.E. anodiad ()

@M Boyce can you request to see all of it? Is there any legal basis (right) for them only giving some?

Gadawodd M Boyce anodiad ()

Thanks Jason.

A.E., I obviously can't be privy to the withheld legal advice at the moment; that will be for the Tribunal to decide later. It appears that the PHSO have tried to explain to the Tribunal why they decided not to volunteer their external legal advice to the Tribunal in the first instance, but only later, and then only because they were compelled to do so. The PHSO have asked the Tribunal that I should be kept in the dark about the reasons for this attempt to undermine the Tribunal proceedings. The Tribunal have said that if the PHSO wish to keep me in the dark about this, then in the interests of fair play, the Tribunal panel that will hear the case must also not get to see the reasons for this subterfuge. It must be said, this all seems rather peculiar and longwinded. I am guessing that although the Tribunal can compel the PHSO to supply it with information, it perhaps cannot disclose that information to me at this stage of proceedings without the PHSO's consent?

The PHSO will insist on playing their tedious little games, but either way, on this issue it does not play in their favour.

Gadawodd A.E. anodiad ()

I'm a bit lost with this. Surely if the tribunal don't get to see the (alleged) reason(s) either, then it's not fair play because they can't evaluate PHSO making excuses, playing dirty etc. Maybe I'm missing something...

Gadawodd M Boyce anodiad ()

No A.E, you're not missing anything. It does not seem fair to me either. If the PHSO do decide to effectively withdraw their submission to the Tribunal that attempts to explain/justify their attempt to undermine Tribunal proceedings because they object to me seeing this, then I will object in the strongest terms. The PHSO, the ICO and the First-tier Tribunal all extol the virtues of openness and fair play in investigations and proceedings: it is not enough to just say it - they must do it as well. I am laying all my cards on the table, and they must do the same.

Gadawodd A.E. anodiad ()

If i were you I would save this entire conversation below the FOIA and make your own website with it, screenshot the FOIA also as part of it. Then you know you have a record for posterity and can continue to expose it no matter what happens to this platform or the FOIA. Shine a light on the evildoers!

Gadawodd Jason anodiad ()

M Boyce, I think the PHSO are well aware that, as A.E. has alluded to, you will publish evidence of their dubious conduct far and wide if given the opportunity (even this thread gets picked up well in search engines as it seems to be indexed pretty high), hence one of the reasons for trying to keep in as much of the dark as possible. That said, the PHSO surely can't be that ignorant (though perhaps they are) not to realise that their reputation is in tatters, so there is little to defend in that respect.

Do you have a full hearing listed yet?

Gadawodd M Boyce anodiad ()

There is no hearing date at the moment because of the PHSO's 'games' involving its 'reasons' for trying to undermine the Tribunal process.

At the moment I am taking the evolving situation as it comes. Exactly what gets published in the future will depend to some extent on what the outcome of the appeal is.

The situation of the PHSO, substantially aided by the ICO, not initially providing the Tribunal with a copy of its external legal advice has particularly wide impact because it effectively green lights other authorities to attempt to undermine Tribunal proceedings in a similar way. Authorities will know that they may not need to provide any or all of any legal advice requested to the Tribunal, and that they can play a game of cat and mouse with impunity. If the Tribunal does not see all the relevant information then it cannot make a fair and balanced decision. This potentially undermines the Tribunal process for everyone.

The Tribunal process is supposed to be as open and fair as possible to all parties and therefore shedding a light on just how open and fair it is must surely be an important part of a citizen's right in a liberal democracy. I certainly don't want to undermine the Tribunal process in any way whatsoever. Some people may say that providing a brief commentary on proceedings may risk undermining the Tribunal process. If I thought that was the case then I would never do it. The Tribunal panel that hears/decides my case will have access to this commentary at the time of the hearing and this should actually help to fully inform their decision-making. The Tribunal is different to a court that involves a jury of the general public. Publicly commenting on a jury court case could obviously risk undermining such proceedings because the general public are mostly not experts in law and are at risk of being swayed by public comment/discussion. The Tribunal panel members are experts in hearing legal cases and therefore would not likely be swayed by public comment: they should look at all the evidence in the round and then make a balanced and fair decision.

I see this a public good and not as a public harm, and I make this clear to make sure there is no doubt about that.

Gadawodd J Roberts anodiad ()

"The situation of the PHSO, substantially aided by the ICO, not initially providing the Tribunal with a copy of its external legal advice has particularly wide impact because it effectively green lights other authorities to attempt to undermine Tribunal proceedings in a similar way."

Your comment reminded me of something from the following FTT appeal, which concerned section 43(2). The Information Commissioner is shown in a bad light yet again:

"31. TheCommissioner argues that the Decision Notice was correct on the facts applicable at the time and relies upon the change in circumstances namely the expiration of the contract with Norwich CCG. The Tribunal disagrees, theTribunal is satisfied that the exact element of the spreadsheet that would be commercially sensitive was the information that the ICO would have needed in order to conclude that prejudice was likely. The level of information provided by the CCG before the Commissioner who did not herself have a copy of the actual disputed information (in that the spreadsheet provided was not functional and therefore the formulae/assumptions and workings were not evident) was insufficient for the Commissioner to have reached the conclusion that she did. "

http://www.bailii.org/uk/cases/UKFTT/GRC...

DN:

https://ico.org.uk/media/action-weve-tak...

It is shocking to read that the IC made a decision in favour of an authority without having the information necessary to make the decision.

Another alarming aspect of the case:

"6. However, without reverting to the Appellant and following an un-transcribed telephone call with Norwich CCG, the Commissioner then purported to change the focus of the request to the April request."

Gadawodd M Boyce anodiad ()

Thanks for this J Roberts. It nicely further illustrates that the ICO simply cannot be trusted. When faced with increasing evidence that they are wrong, instead of changing position to make it right, they just entrench into a position of denial and obstruction.
In my case the ICO first don't ask the PHSO for all the relevant information. Then they refuse to tell me whether they have received all the relevant information. Then they tell the PHSO to decide for themselves whether to send all the relevant information. Then they try to send the Tribunal more submissions well after the final submissions date in order that I could then not reply to it, and without even asking the Tribunal for permission to do so. Then the Tribunal tell me that I should raise my concerns about these late submissions with the ICO themselves and not the Tribunal! You just couldn't make it up, and I assure you I am not.
What is most worrying is that the ICO has such powers to do good, but all they seem to do is bad.

Gadawodd Jason anodiad ()

Yes, the fact that one simply cannot trust the ICO is as certain as death and taxes, albeit in my opinion. It is such a shame that they are using their potential and significant powers improperly as you have set out, but this is unsurprising as it is ultimately part of an establishment that seeks only to look after itself.

Very well done again for all your valiant efforts and shining more light on this rotten bunch.

Gadawodd J Roberts anodiad ()

In the DN I referred to above:

https://ico.org.uk/media/action-weve-tak...

the PHSO is mentioned:

'64. In the Commissioner’s view, this argument is stronger than the arguments for disclosure that the complainant has provided. In the Commissioner’s view, a more appropriate route to hold the CSU and/or CCG to account with regard to her own circumstances would be by submitting a complaint to the PHSO. Any wider problem with the CSU’s methodology would be likely to be surfaced if the PHSO were to receive a number of such complaints from different individuals in receipt of a PHB provided by the CCG.'

I'm not sure the public would agree that that problems 'would be likely to be surfaced' by submitting complaints to the PHSO. I have just looked at how the organisation is faring on Trust Pilot, and it seems to be getting worse:

https://www.trustpilot.com/review/www.om...

Things aren't looking any better for the Information Commissioner's Office:

https://www.trustpilot.com/review/ico.or...

Gadawodd M Boyce anodiad ()

Thanks Jason.

J Roberts, the PHSO make sure that complaints submitted to them not only do not the reach surface, but are sunk without trace.

The Trust Pilot reviews are very revealing. Has anyone got a good word to say about either the PHSO or the ICO. Can everybody be wrong and the PHSO and the ICO always be right?

Karl Marx famously described religion as the opiate of the people because he believed it created a numbing acquiescence to authority. The PHSO and the ICO could be described as a kitchen utensil of the people - because when you've been unfortunate to stray too close you get a severe numbing feeling, just like you've been hit over the head with a frying pan.

Gadawodd M Boyce anodiad ()

In the next week or so the ICO will publish a decision notice on its website which 'finds' that one of my FOI requests concerning the PHSO review process was vexatious - section 14. The ICO consider my request to be vexatious in part because I repeatedly refer to the PHSO review process as a sham. The PHSO and the ICO claim that this distresses and upsets the staff at the PHSO. That is very unfortunate and regrettable, but that does not make the request vexatious. Why are the PHSO so upset and disturbed by the truth?

I have detailed many reasons why the PHSO review process is a sham, and just one of those many reasons is something I have mentioned several times before. I applied for a judicial review of my final decision. The PHSO informed the High Court that my application for judicial review should be thrown out as 'totally without merit' - utterly bound to fail and without any rational basis whatsoever. The PHSO then decided, before the judge had made his decision, that there were very firm grounds indeed - merit - to grant a PHSO review of my final decision. The Court did what the PHSO asked it to do, and the subsequent PHSO review was of course then not upheld. Surely no other single example could better illustrate what I mean when I refer to the PHSO review process as a sham. I call it a sham because it is a sham. The truth hurts - and according to the PHSO, and now fully endorsed by the ICO - it distresses and upsets them too. Does it not distress and upset complainants when they have the PHSO tell them that their review application is of clear merit, and then they tell the High Court that their application for judicial review, on exactly the same evidence, is totally without merit?

Gadawodd Jason anodiad ()

Yes, indeed, M Boyce.

I think the PHSO's review process' overriding objective is to cover the back of the PHSO. It is not in place, in my opinion, to act in the best interests of the complainant.

In my experience and seemingly many others, the PHSO has had absolutely no regard for the feelings or distress caused to others that arise from its brutally unfair decision-making. It certainly seems to only compound people's grief and distress. To that end, I certainly wonder if the PHSO staff are capable of feeling anything at all.

Gadawodd M Boyce anodiad ()

Tomorrow is crunch day: the PHSO must let me and the Tribunal and the ICO know whether they wish to withdraw some of their last submission to the Tribunal - the reasons why they tried to undermine Tribunal proceedings by not originally supplying it with the external legal advice.

It's also worth pointing out at this stage that the PHSO regard the Freedom of Information Act 2000 as toothless and impotent , as follows:

'...it is not appropriate , nor indeed possible, to use the FOIA to do so' [to request information to shed light on possible wrongdoing].

Not possible to use the FOIA to uncover possible wrongdoing! Then what is the FOIA there for? According to the PHSO, the FOIA functions only to possibly provide information, which must then never be used to hold public authorities to account. If they are right, then heaven help us all.

Gadawodd Jason anodiad ()

Yes, well they would say that, because the notion of being held to account by way of the FOIA would not bode well for such a dubious bunch. They would much rather people only had a JR option, which in reality is not an option at all for the ordinary person.

Gadawodd M Boyce anodiad ()

Agreed Jason

As predicted, the PHSO has now opted to withdraw its last submission to the Tribunal in order to prevent me from seeing it. This submission tried to explain why they tried to undermine the Tribunal process by not originally supplying the external legal advice. This external legal advice was only supplied to the Tribunal because luckily I knew about its existence, and despite the ICO also working to conceal it from me and the Tribunal.
This is of enormous significance because it not only affects me, but it potentially affects every single person who takes their case to the First-tier Tribunal - it effectively green-lights the overt concealment of crucial information. In short, it makes a complete mockery of the fairness of the Tribunal process.
I will now make a formal submission to a judge at the Tribunal detailing my very serious concerns about what this means for myself, other appellants, and the First-tier Tribunal itself.

Gadawodd Jason anodiad ()

Yes, indeed, M Boyce.

It makes a complete mockery of the FOIA too if government agencies can just cherry-pick which information they choose to disclose, depending on whether or not it is favourable or unfavourable to them.

All this is profoundly concerning.

Keep us posted.

Gadawodd J Roberts anodiad ()

M Boyce,

"In the next week or so the ICO will publish a decision notice on its website which 'finds' that one of my FOI requests concerning the PHSO review process was vexatious - section 14."

I've skimmed the DN. PHSO are exaggerating in my view. They make a big thing over the use of the word 'sham'. To think that they had someone count the number of times the word appeared in your request! I don't think a judge would agree with them on the significance of its use.

The first thing that strikes me is that the Commissioner has not treated the five elements of your request separately. You may wish to read King v IC (especially paragraphs 29-31 and from paragraph 53 onwards):

http://www.bailii.org/uk/cases/UKFTT/GRC...

"12. The Commissioner’s guidance goes on to suggest that..." (DN)

31. We likewise note the Guidance but our interpretation of the law is founded on the statutory language and relevant decisions of the higher courts. (King v IC)

If the Commissioner's guidance isn't up to scratch, then serious questions arise as to her decisions.

“53. To return to the words of Arden LJ in the Dransfield case, the “high standard” which that provision sets has not been met and the ground for depriving Dr King of her “constitutional right” has not been established.” (King v IC)

If a person can be robbed of their constitutional right by using the word 'sham', 'dangerous' and 'corrupt' to describe PHSO we are in a very dark place indeed. PHSO seem determined not to disclose the information you want.

Gadawodd A.E. anodiad ()

Just out of interest, what type of tribunal is it? There are tons, I only knew of employment and educational ones. https://www.judiciary.uk/publication-jur...

Gadawodd M Boyce anodiad ()

A.E., It is the Information Tribunal. I've provided the link below.

https://www.gov.uk/guidance/information-...

Gadawodd A.E. anodiad ()

Thanks M Boyce. So it's kind of doubly specific, a tribunal over a breach relating to information/data - which PHSO is playing around with information/data law over. Isn't it just beyond the pale.

Gadawodd J Roberts anodiad ()

M Boyce,

Has the Tribunal refused a request by you to obtain information from the PHSO?

Remember this:

"16. I have been asked to say whether the ‘public authorities are necessarily required to make submissions that refer explicitly to the content of the withheld information.’ The underlining is in the original. I decline that invitation. First, because public authorities are not required to make any submissions; what they say is a matter for them."

('necessarily required' is the phrase underlined)

http://www.bailii.org/uk/cases/UKUT/AAC/...

You responded:

"But, they can clearly ASK for an authority to do this if this would provide an equitable compromise. If the authority were to refuse this request, then that in itself would raise the question of why would they refuse this."

I agree that it would raise the question of why they refused it, but I am unaware of any powers the FTT has to compel an authority to provide information. The Tribunal can issue directions requesting specific information, but the authority need not comply. The Tribunal then has to decide without having the information requested in its directions. For example:

"27. In view of the Trust’s failure to comply with the directions, we decided..."

http://www.bailii.org/uk/cases/UKFTT/GRC...

Gadawodd M Boyce anodiad ()

Thanks J Roberts.

I take your point. I will not at this stage, however, be asking for any of the content of the 'withheld information' - external legal advice. What I will be asking for is the reasons why the PHSO did not originally supply the Tribunal with this advice, and then later supplied the Tribunal with what now appears to be irrelevant legal advice - 'not within scope'. The PHSO may refuse to explain all of this, and if they do then we can all make are own minds up about that.
Then there is the issue of the ICO now deciding that some of the internal advice they now also regard as not in scope. Why have they changed their stance on this?
In any case it does not look good for the PHSO when they first try to conceal advice and then they try to further conceal advice by sending the Tribunal irrelevant advice instead of the relevant advice.
The ICO have told me they would prefer that I should see their latest submissions on all this, but they have left the final decision on that matter - Tribunal rule 14 - with the PHSO to decide. They know the PHSO will continue to hide behind rule 14.
Let's see what a judge has to say about all this.

Gadawodd phsothefacts Pressure Group anodiad ()

Has anyone looked up the tribunal ruling regarding Prince Charles ‘spider letters’? The royals clearly did not want to reveal these letters but were required to by the tribunal (until they changed the law providing royal privilege) .

Gadawodd M Boyce anodiad ()

I've not read it, but it could be worth a look.

In my case, even if the Tribunal find that the public interest favours disclosure, then what would actually be disclosed? The PHSO have supplied the Tribunal with, according to the ICO, seemingly irrelevant legal advice. This legal advice is about something, but that something is not the review process. So what is the legal advice about?

Answers on a postcard please.

Gadawodd phsothefacts Pressure Group anodiad ()

It may be that PHSO have submitted 'irrelevant' legal advice to the tribunal - alternatively it could be that they all agree to deem the legal advice 'irrelevant' when in fact it is very relevant and how would you know if you are never given access to it?

The UT report on the Prince Charles letters is linked here. https://www.bailii.org/uk/cases/UKUT/AAC... and original 2012 decision is here https://www.pdpjournals.com/docs/88045.pdf

Gadawodd M Boyce anodiad ()

Thanks for the links. I'll have a read through them.

Yes it had occurred to me that the ICO are saying that the legal advice is irrelevant - 'not within scope' - when it is relevant. If this is the case, and for this subterfuge to succeed, it would have to have the backing of the Tribunal.
Would the ICO risk putting their head into the noose in order to cover-up wrongdoing by the PHSO? Let's hope not.

Gadawodd M Boyce anodiad ()

I will shortly be writing to the Tribunal Registrar to ask that GRC Rule 7(3)(e) be invoked, whereby the Tribunal makes a request to the Upper Tribunal to compel the PHSO to supply it with a copy of the RELEVANT withheld external legal advice. The overriding objective of the Tribunal is that the process should be fair and as transparent as possible.

Gadawodd Jason anodiad ()

That seems like a very wise move, M Boyce.

Kudos to you again for all your outstanding efforts.

Gadawodd J Roberts anodiad ()

M Boyce,

Interesting point about GRC Rule 7(3). I've made an information request to the HMCTS about its use:

https://www.whatdotheyknow.com/request/r...

Some bad stuff about the MOJ came out in this recent employment tribunal that you might like to read:

https://assets.publishing.service.gov.uk...

"19. We are satisfied that the respondents conduct of these proceedings has been unreasonable. Their disregard of the basic rules of disclosure, their corruption of documents by conflation, amendment or post dated creation demonstrates in our view a clear desire to obstruct the claimant’s presentation of his legitimate claims, to place themselves above the rules of procedure and to mislead not only the claimant but also the Tribunal.

"21. ...Those failings go beyond error. They have been wholly unreasonable and have been disruptive to the proceedings. They have not arisen by accident but by design as the wholesale denial of the existence of documents which subsequently appeared, the post-dated creation of documents designed to “plug the gaps”and the alteration of documents does not, and we find in this case did not, happen by inadvertence."

Certainly not a good example for the MOJ to set.

Gadawodd M Boyce anodiad ()

Thanks for your last post J Roberts, it is very interesting. I may well refer to it in my next submission to the Tribunal - now extended by the Tribunal to the middle of October 2019, thanks to the process frustrating tactics of the PHSO, and to some extent the ICO.

What your links show is just how authorities - usually the respondents - often resort to any means in order to pervert the course of justice. What is most worrying is that they do so with almost total impunity: they may be ordered by the Tribunal to pay the appellant a peppercorn amount of costs, but who pays for those awarded costs? The tax-payer, and not the public authority or those orchestrating such nefarious practices.

Gadawodd M Boyce anodiad ()

EUREKA!

I don't know why I've not realised what has been staring me in the face for many months: it is not just the PHSO that is breaking the law, it is the ICO too. And importantly, it is the ICO's Decision Notice that is the subject of the Tribunal appeal.
In the ICO's Response to my appeal they state:

'The Appellant has failed to set out in the grounds of appeal why the Commissioner's Decision Notice is not in accordance with the law..'

Well that's about to change.

With regard to section 42 FOIA - legal professional privilege, it states:

2 (2) 'In respect of any information which is exempt information [legal professional privilege] by virtue of any provision in Part 11, section 1 (1) (b) does not apply if or to the extent that

(b) in all the circumstances of the case, the public interest in maintaining the exemption OUTWEIGHS the public interest in disclosing the information.'

Yet in the ICO's Decision Notice it states:

'Only in VERY EXCEPTIONAL cases can this [legal professional privilege] be overridden when considering where the public interest lies..... the Commissioner does not consider that this case is EXCEPTIONAL to rule in favour of disclosure.'

In my previous submissions to the Tribunal I have stated that the ICO's stance above is unfair, but of course it is much more than that - it is not in accordance with the law. The FOIA clearly states that for disclosure to occur it simply has to outweigh maintaining the exemption - nothing more than that. It says nothing about the need for disclosure to be very exceptional. The ICO has not acted in accordance with the law by predicating their Decision Notice on being very exceptional.
This is also of great significance for other cases (at least three or four) where the Commissioner has stated the same need for disclosure to be very exceptional. The ICO has broken the law in the past, it has done so in my case, and it must be stopped from doing it again.

The PHSO are not above the law, and neither are the ICO, as I now aim to prove to the Tribunal.

Gadawodd J Roberts anodiad ()

Just a thought on the 'irrelevant' information submitted by PHSO to ICO.

"38. It is common ground that the evidential burden of establishing that a document or communication is privileged lies on the party claiming privilege, regardless of whether that party is the claimant or the defendant in the action.

"39. The question whether a document or communication is privileged is to be determined by the Court in the light of the evidence taken as a whole. The mere assertion of privilege, or statement of the purpose for which the document was created, is not in itself determinative, even if the person making the statement is a lawyer, and even if the assertion is made on oath. Whilst an affidavit of documents will generally be treated as conclusive on the question of privilege, it will not be treated as such if it appears from the affidavit itself that the deponent has erroneously mischaracterised the documents, or if it is reasonably certain from the other evidence before the court that it is incorrect or incomplete on the material points".

http://www.bailii.org/cgi-bin/format.cgi...

Gadawodd M Boyce anodiad ()

Thanks J Roberts. Ultimately it is down to a court or a tribunal to decide whether the information supplied is within the scope of the request and then whether legal professional privilege applies in all the circumstances of the case.
It is difficult to understand why the ICO would claim that the external legal advice that the PHSO has sent to them and the Tribunal is not within scope if it is indeed within scope. We have to assume that the Tribunal will actually look at this legal advice and decide for themselves. If it is not within scope then I lose, even if the Tribunal were to allow the appeal and order the release of this 'irrelevant'/ out of scope advice.
The PHSO have until next Friday to supply me with their final open submission to the Tribunal. The ICO then have until September 21 to supply their final open submission. I then have until October 14 to supply my final submission. I will have to wait to see what both the PHSO and the ICO have to say before I make a request to the Upper Tribunal that could compel the PHSO to supply to the Tribunal the in-scope external legal advice.
It is possible of course that the PHSO will claim that they have 'lost'( eaten by the dog or stolen by Martian's) the in-scope legal advice. But this advice is fairly recent (within the last three years) and a copy should surely be held by Counsel. In any case, there are other documents, such as legal briefing commission on the subject of legality of reviews. Unless of course they have fallen 'irretrievably' down the back of the filing cabinet

Gadawodd Jason anodiad ()

M Boyce, are they not essentially arguing that only in very exceptional cases will the public interest outweigh the exemption?

I would agree with you, though, that if the public interest outweighs the concealment then what is “very exceptional” (however that is defined) is a moot point.

Gadawodd M Boyce anodiad ()

Jason, the ICO are not arguing that only in very exceptional cases WILL the public interest outweigh the exemption. They are arguing that only in very exceptional cases CAN the public interest outweigh the exemption. This is not just a matter of semantic niceties, it is of crucial importance. The ICO are arguing that disclosure CAN ONLY occur in very exceptional cases - they imply that disclosure is predicated on extreme exceptionality.

This is not what the law says - not what the FOIA says.

This is not what the ICO themselves usually say - cases need not be exceptional, let alone very exceptional.

This is not what the First-tier Tribunal says - they repeatedly rebuke the ICO for subverting the law in this way. They tell them off, but let them repeat the offence over and over again with impunity.

Gadawodd M Boyce anodiad ()

Totally agree A.E.

Too many public authorities are abusing the FOIA by wrongly and unfairly using sections like 14 and 42 to shut down public scrutiny of their wrongdoing. The ICO are very often part of the problem and not the solution, especially when they clearly and demonstrably act in a way that is not in accordance with the law. This is no mere opinion or unfounded accusation - it is an evidentially obvious fact, and one which I have proved in recent posts above.
We must all fight to improve public services.

Gadawodd J Roberts anodiad ()

Too true, M Boyce.

The comment below by Judge Poole QC (Upper Tribunal) seems to me like a veiled criticism of the FTT decision I cannot find which relates to an unsigned Commissioner's decision:

"22. As the Tribunal is aware, it is not there merely to rubber stamp decisions of the Commissioner."

http://www.bailii.org/uk/cases/UKUT/AAC/...

Gadawodd J Roberts anodiad ()

M Boyce,

You might be interested in this UT decision - Davies v 1. The Information Commissioner; 2. The Cabinet Office:

http://www.bailii.org/uk/cases/UKUT/AAC/...

Although this decision does not concern section 42(1), it dealt with 'closed material'. In your case, the IC may pass material to the FTT in the form of a 'Confidential Annex'. If the FTT dismisses you appeal on the basis of closed material you have not seen, what can you do?

In paragraph 9 Judge Markus who gave permission to appeal is quoted:

"4. The Appellant is not in a position to identify the matters in respect of which I have given permission to appeal, as he has not seen the closed material...The overriding objective and the requirements of procedural fairness and natural justice mean that the Upper Tribunal must take particular care when considering matters which are closed to one party. My approach is not incompatible with the Tribunal’s duty to act impartially and judicially.”

Gadawodd M Boyce anodiad ()

Thanks for this J Roberts. The way things are going it could be very useful. The PHSO, the ICO and the Tribunal are doing their best to keep kicking my case into the long, long grass. It has now been kicked into late October. The PHSO know that they can keep prevaricating indefinitely and the Tribunal will just accept it. If I tried to do this the case would be instantly thrown out. I have already informed the Tribunal that I believe that the Tribunal process in my case is now demonstrably unfair and indeed farcical. There is constant delay after delay by the PHSO, and the Tribunal seem content to decide my case with their eyes and ears closed - they have not been provided with the relevant information and seem uninterested in obtaining it.

Gadawodd Jason anodiad ()

How are you getting on with the Tribunal etc., M Boyce?

Gadawodd M Boyce anodiad ()

Jason, the PHSO have declined to make any final submissions to the Tribunal.

The ICO now have a couple of weeks to make their final submission.

I then have until the end of October to make my final submission.

The ICO have told me they do want to 'explain' why they regard the PHSO external legal advice, and some of the internal legal advice, to be 'out of scope', but they are waiting to hear back from the Tribunal because the PHSO has tried to block this under Tribunal Rule 14.

This constant procrastination by the PHSO, the ICO, and the Tribunal is making things very frustrating because I simply do not know whether the PHSO external legal advice is indeed 'out of scope', and if I find out it is at the last minute then I will have to apply to the Tribunal at the last minute to ask them to compel the PHSO to provide the 'in-scope' external legal advice - with all the obvious delays that will follow from this. This case has been with the Tribunal now for over nine months.

Gadawodd M Boyce anodiad ()

https://ico.org.uk/media/action-weve-tak...

I will also be appealing the above to the First-tier Tribunal.

The ICO agree with the PHSO that there is no inconsistency in the two forms of advice concerning alternative legal remedy (e.g. judicial review). The two are obviously inconsistent.

The ICO make no explicit argument about the value/purpose of the request. It is part of their job to do so.

I categorically refute the accusation that the request is vexatious.

This request is also crucial in the whole PHSO review process fiasco, and I have already referred to this glaring inconsistency of ALR advice in my current appeal to the FTT.

Gadawodd phsothefacts Pressure Group anodiad ()

Very interesting.