We don't know whether the most recent response to this request contains information or not – if you are Jt Oakley please sign in and let everyone know.

Apologies for wrongful decisions.

We're waiting for Jt Oakley to read recent responses and update the status.

Dear Information Commissioner’s Office,

1. A FOIA request is made.
2. An authority states that no data exists on record that would provide a response to that request.
3. The ICO sides with the authority and upholds the authority response and advises the requester to appeal in court. Even though the requester states he/she knows the data exists and must logically do so.
4. The requester then receives the requested data ....that was stated not to exist, by the authority.
5. And provides it as new evidence to the ICO.
6. But the appeal time limit to take the decision to court has elapsed.

Presumably any authority could use the same strategy ...to avoid the requester taking any unjust decision to court.

Could the ICO please provide the ICO procedure, including the provision of an apology, to right a provable wrongful response, when a requester has been ‘timed out’ by this data withholding strategy.

Yours faithfully,

Jt Oakley

AccessICOinformation, Information Commissioner’s Office

Thank you for contacting the Information Commissioner’s Office. We confirm
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If you have made a request for information held by the ICO we will contact
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If you have raised a new information rights concern - we aim to send you
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Robert Whittaker left an annotation ()

What would happen if the requester asks for a new FOI s50 determination by the ICO in a case like this? Although the original decision notice presumably can't be revised or set aside, is there anything to stop the ICO issuing a new one? The grounds for the ICO to refuse to issue a DN under s50 are quite limited and it could be argued that none apply to a duplicate request where significant new evidence is now available.

Godfrey Banting left an annotation ()

The ICO seems to exist for the purposes of getting the general public to do work on behalf of the government through what it can learn from requests, complaints and appeals. You're not allowed to win however even if the arguments are justified.

The ICO's 'Response' at paragraph 27 in an Information Tribunal says one thing...

http://www.scribd.com/doc/204634600/Comm...

However, in a subsequent High Court case brought by a different person the complete opposite was held:

http://www.bailii.org/ew/cases/EWHC/Admi... (especially paras 56 & 57)

Jt Oakley left an annotation ()

Thank you both.

I simply can’t understand where there is a demonstratable injustice the ICO still supports the organisation which has failed to provide the data. Surely withholding data is illegal?

A simple apology and retraction would suffice, since I have the information, but that seems to be beyond the purview of the ICO.

Meanwhile I’m on record for keeping on asking for data which I knew existed. And telling the ICO that it existed.

LOGICALLY it had to be a process which the Land Registry employees used to change records,
Because land boundaries are changed every day.

Meanwhile, according to the ICO, it is perfectly ok for the Land Registry to put my personal info on WDTK five times.... thanks to WDTK it was removed. Although the ICO did warn the Land Registry once.

So yes, I agree, it does seem very one sided and biased towards the organisation concerned.

Even after the information was obtained ( *sent by private email to avoid a WDTK response) the organisation doesn’t get a warning.

*Requesters will recognise this strategy - to avoid putting information on the public WDTK site.

So presumably because organisations are now aware that the ICO doesn’t chase irregularities ( and I’m hoping there is some procedure, where the ICO might support the requester, evidentially by having been proved right ) ALL organisations subject to the FOIA, can flout the Act with impunity.

It may be, that when the Act was drafted, it was not supposed that ANY gvt organisation would act in this way.
But, nevertheless, the system should be updated to be just.

Meanwhile, the blame continues to be all mine.

My total unreasonability for knowing the info existed (a lawyer stated it did) .... and unsportingly continuing to insist it was provided:

Here’s what I am accused of:

:::

The Commissioner’s decision notice was very clear that the history and context of your information request provided strong grounds and support for the application of Regulation 12(4)(b).

Paragraph 63 noted that: ‘The Commissioner is satisfied that this is the case here, where the complainant is placing a significant strain on the Registry’s resources by submitting a long and frequent series of requests and other correspondence, and the request of 13 January 2016, in its unrefined state, is contributing to this aggravated burden’.

Paragraph 69 also stated that, ‘The Commissioner considers that the complainant’s requests have by some way passed the point where it would become unreasonable for the Registry to continue to respond to them’. The Commissioner’s rationale for finding that the Registry was correct to refuse your request under Regulation 12(4)(b) was therefore not dependent on or affected by any new information which you believe to be relevant.

The Commissioner’s decision notice is her final position in this matter and please note that should you attempt to engage the Commissioner in further correspondence concerning this decision (which was issued more than 8 months ago) any such correspondence will be logged but not responded to.

J Roberts left an annotation ()

"I simply can’t understand where there is a demonstratable injustice the ICO still supports the organisation which has failed to provide the data. Surely withholding data is illegal?

A simple apology and retraction would suffice, since I have the information, but that seems to be beyond the purview of the ICO. "

Getting an apology may be difficult, if not impossible. Here is a fine piece by investigative journalist Neil Wilby about his recent court victory:

https://neilwilby.com/2017/09/30/commiss...

"Not one word of apology has been given to Mr Wilby over the significant expense he has been put to and the enormous amount of unnecessary time he has spent dealing with a quite ludicrous, and entirely disproportionate, approach to this appeal by both Commissioners."

You can also find details on whatdotheyknow:

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

J Roberts left an annotation ()

I should also add that in Mr Wilby's case the two barristers he faced were instructed "to concede nothing".

Jt Oakley left an annotation ()

Thank you very much J Roberts.

Very useful information and I have annotated Neil Wilby’s request.

Personally I would think it would save a great deal of public money for the ICO just to say ‘sorry’, on new compelling evidence.

But maybe there is some legal mechanism, that it must adhere to, that prevents this?

Maybe those that drafted the FOIA thought that a public organisation would never misinform a FOIA requester and so this scenario was never considered?

Or maybe the non-apology is just by custom?

+++

However, the request is already flagged as ‘maybe vexatious or asking for personal information’, so maybe I will be precluded from finding out.

Thanks again.

J Roberts left an annotation ()

"But maybe there is some legal mechanism, that it must adhere to, that prevents this?"

I think there is.

Public bodies don't like to use the "A" word because of its association with wrongdoing. If possible, they prefer the "non-apology apology":

https://en.wikipedia.org/wiki/Non-apolog...

As the Information Commissioner is from Canada I thought I would include this:

"In November 2008, the Alberta legislature passed an amendment to the existing Alberta Evidence Act, R.S.A. 2000, c. A-18, geared at protecting apologizing parties from risks of legal liability and loss of insurance coverage. Section 26.1 of the Act provides that an apology does not constitute an express or implied admission of fault or liability."

Jt Oakley left an annotation ()

Thanks J Roberts - Always on the ball.

Maybe the less constricted view of the new ICO chief will end this £££££ costly non-apology turpitude, as you reference, and adopt the Canadian system.

:::

I agree that organisations hate apologising - ‘hate’ seems to be no exaggeration when you are on the end of it.

Even when I stated ‘ I do not want any compensation or payment, just please tell me what happened’ to the Welsh NHS, it continued to hide the files and carry out a very poor investigation. Even though the CEO accepted part of the complaint straight away.

If this NHS Authority had told me what happened and apologised - I would have accepted human error. Gone away to grieve and that would have been that.

But it erected every possible defence going.

....But, to be fair, it later transpired it did have rather a lot to cover up.

::::

You’ll know the strategies used for the dismissal of requesters.

The usual tactics :

1. Delays and not meting the legal amount of response days
2. Endlessly querying simple statements
3. Demanding clarifications that you can only give, if you know the filing system
4. Carrying out a review, that doesn’t address the terms of the request and seemingly reviewing a request the organisation wished you had made, instead of the one you did.

And with the Welsh NHS -

A. Refusing medical files( illegal under the Access to Health Records Act)
B. Hiding medical files ( I knew exactly where in the building they were hidden - since I had a whistleblower)
C. Sending only half the requested info - with the most salient central data point missing, stating a ‘photocopying error’.
Nb Check the page numbers.

It’s wearying.

Nb There are numerous incidents of the NHS demonising the character of anyone who asks: ‘Why’ ...as a defence, which is most upsetting to anyone bereaved.
Subsequently 22, 528 people are interested enough to read my Tweet on the NHS treating the bereaved as ‘mad, bad and dangerous to know’ and 558 interactions on Twitter.
So I know I am not exactly alone in my opinion on this.

::::

But to continue, there was no explanation or apology from the NHS.
So what can a bereaved person with questions do but take it further?

::::

The NHS was eventually forced to give an apology, after the Welsh ombudsman had critically upheld my complaint and stated that I should have recompense ( Gave it to charity, as dirty money) .

So it had to apologise and pay up anyway.
Plus the PR-fail of having its incompetence aired in the local, Welsh media, including TV news interviews and two nationals.

....All for the sake of giving a truthful explanation and a real apology.

:::

I just don’t understand the keenness of public organisations, who state they are underfunded, to £spend, £spend, £spend from the public purse in the cost following ( it can take years) of ombudsman, ICO and the whole costly court procedure.

When it’s much simpler - and kinder - to treat people with respect and apologise, after the point that they state that do not want any compensation.

Maybe, due to the economy, organisations will be encouraged to rethink this non-apology point.

So if the ICO is open and willing to state exactly what the position is, I will be able to bring this to the attention of my MP.

N Jackson left an annotation ()

"You’ll know the strategies used for the dismissal of requesters"

Would it be appropriate to add to the list, "obfuscation", by changing reference numbers etc., and quoting wrong dates of previous correspondence to make any dispute or potential dispute almost impossible to resolve.

Jt Oakley left an annotation ()

Thank you N Jackson.

Yes...Good one.

Anyone like to add anymore?

****

Some I suspect are used to tire requesters out.

*Delay. ‘Clarifications’ used to beat the clock. .

When an organisation is due to run over the 20-day time limit, it will ask for a clarification of the request.

Some of these are fair, but some are hilariously inept and obviously designed to extend the time limit.
But nevertheless less must be borne and given a reply...or the request will hang at that point.

TIP:
Duty to provide advice and assistance (section 16)
You may ask why there has been no S16 help and assistance , which the organisation must give you to assist you to formulate the request. This is often overlooked by arrogant organisations.

But in the court I attended, it was the first question.

‘Where is the S16 help,and assistance?’

So my impression is that courts do not look kindly on organisations wasting the publics’ time by trying to shut them down with a dismissal, rather than assist their request’s passage.

Plus the subsequent costs of a display of arrogance to the requester, who has no idea of set up of organisational files.
Assistance should be given to a requester to be able to refine a request which could then be easily answered ....and so save everyone else along the line to court the bother and cost.

—�

*Replying to a ‘guessed’ personal email address, or even better, a home address, that the respondee has on the organisation’s files.

This secrecy strategy is used even though your exact name might NOT be the same:
On the organisation file- John Smith
On WDTK - JH Smith

It has obviously got its ID pitfalls. How can the organisation be sure of the ID?

But you can almost be sure that someone wants to hide an embarrassing reply by using this tactic.

TIP - It’s annoying to have to type out the home paper reply for the WDTK site but that’s what I do. Put the email on WDTK, so that others can follow the outcome of what should be a publically available response to a FOIA request.

—�

Subject Access Requests

*Using an internal reference on your communications... so that when you ask for a SAR, your name doesn’t come up in a search.

The why? To avoid disclosing personal data to a requester.

This is how it works- The respondee to the request writes to another internal department, giving an internal reference.
For example ‘A/457b’ (instead of John Smith) on your request, which is now ‘blind’
So as your name is not on the document, any later SAR search doesn’t find it.

Even though the reference is linked to you ....and should therefore be disclosed.

TiP : Look for your request, then the FOIA dept reply to you, and marvel how the respondee managed to provide a newly-written highly-specialist response instead of requested data on file, without ever having been in contact with any specialists.

Nb The ICO does not accept that persinal data is missing as it has no prooof, even though logically it must be.

—�-

*Searching the Internet for any Tweet, Facebook entry etc, which might possibly be linked to you.

Even though Teeets etc can be under an anonymous names ....and not the same as your organisational file name at all.
So it’s a guess.

... And then adding it to your files to ‘prove’ how vexatious you are.

ICO says - ‘Section 14(1) can only be applied to the request itself and not the individual who submitted it’.

- So, no, I don’t get it either. The request is supposed to be vexatious not the person who made it.
So why are public officials wasting public resources by chasing requesters around the Internet on the offchance?


* Deliberatly driving requesters towards a S 14 vexation.

Criteria :

ICO says:
1.‘The requester submits frequent correspondence about the same issue or sends in new requests before the public authority has had an opportunity to address their earlier enquiries’.

Nb Requests can take over a year to fulfill by the other ‘delay and put- off’ strategies.
Requesters naturally get fed up and try to obtain a result with a new request on a linked topic.

Tip: Asking the ICO investigator how it knows the organisation has ‘comprehensively’ provided all the requested data .

It's of no use as requesters to protest . Even those who have written in to the organisation ....and KNOW their own correspondence is on file. As requesters are deemed less worthy than an simple assurance from the organisation.
Because the ICO can’t prove otherwise. What can it do? Raid the organisations’ files on a requesters word?

Should a requester subsequently obtain the ‘ non existent ‘ information, as the organisation had ‘comprehensively’ responded to the request , no apology is ever given. By anyone.

So this denial works ‘comprehensively’ for the organisation.

—�-

* Redefining your request, after a demanding a clarification, as another request entirely ....when it plainly isn’t.

This also goes towards the number of requests that you’ve made on the same topic, so you can be ‘judged’ to be critical of an organisation and therefore this makes your request S14 vexatious.

ICO guidance:

2.‘Unreasonable persistence. The requester is attempting to reopen an issue which has already been comprehensively addressed by the public authority, or otherwise subjected to some form of independent scrutiny. ’

- Nb This one didn't work in court.

The ICO believed the number of the ‘added’ requests given to it by the organisation. It doesn’t seem to ask for supporting evidence of the actual requests, until just before court.

But the missing evidence can be provided by the requester to the court. Especially if it’s on WDTK.
So I had the evidence, the organisation didn’t and relied on its assurance to the ICO not being challenged.

***

Which is why the ICO lost.
Well done WDTK! How did anyone get anywhere without this site?

****

The how-

My stated ‘ vex number of requests’ dropped from ‘over 100 - to 34 and these were almost all on different issues , which don’t count towards being vexatious on one topic.

TIP: For instance, a request on the number of locations cannot be counted towards a request on the salaries of the board.
But that’s exactly what this organisation did. Just added up every request and every clarification towards making my request vexatious.

From memory I think there were roughly 2/3 requests on the same topic and that was because the first response had failed to supply the data requested. So the request had to be reformed to be more specific to get the desired informational response.

—�
Frivolous S14
* Defining ‘frivolity’ as a vexation reason on a serious request, even though the respondee has not asked you for your motive.

(They can’t ask you, as requests are supposed to be blind ..so they ‘guess’ your motive is frivolous.
Sometimes with bizarre results ).

This is what the ICO is judging the request against:

ICO section 14 guidance:
‘Frivolous requests The subject matter is inane, or extremely trivial and the request appears to lack any serious purpose. The request is made for the sole purpose of amusement’.

Example: I’ve just asked for the diary input of a resigning ombudsman, whose public statements don’t seem to match up with the timetable of the background of why she resigned.

My take: The investigator seemingly had no idea of the press coverage and importance of the unique event, so presumably thought I was asking for frivolous diary title tattle.

Since no ombudsman - having the powers of a high court judge,- has ever had to resign in this way before, its of genuine public interest to know the background of this extraordinary resignation. Especially after the ombudsman’s deputy resigned a well.

Yet this request was stated as being ‘frivolous’ by the ICO.

—�—

Conclusion-
FOIA responders are now seemingly reduced to ‘gaming’ requesters to avoid responding to requests.

There seems to be pressure to provide a reputational defence, rather than complying with the Act, probably from their employers.

Closing In left an annotation ()

"C. Sending only half the requested info - with the most salient central data point missing, stating a ‘photocopying error’.

Now I'm convinced that this was the DWP's strategy of invalidating an appeal (duplicating the first page of the form and missing the second which contained the grounds of appeal and signature).

Jt Oakley left an annotation ()

Yes .. had that one - twice.

Two different organisations. Both turned out to be crucial information .... and both covering up the negligence of an employee.

Not just me stating that.

External judgement by 1. ombudsman and 2. legal investigator.

::::

First request was along the lines of : ‘Who is entitled to visit a corpse?’.

I got around 30 pages of morgue temperatures and trolley details. With two missing pages in the middle.

The request is specific and there had to be an answer - because it’s procedural.

It was a real struggle to get them to come up with the ‘photocopying error’ excuse and apologise though.

And eventually provide the information.

****

It’s also a problem if you go to the ICO because, logically, there should be a procedure for what you are requesting,
As the organisation concerned can’t function correctly without one.

But the organisation will state that the procedure doesn’t exist, so what can you do?
It’s even more difficult when the request is less specific.

Only thing you can do is check the page numbers. And point out the discrepancy.
Or provide the same procedure of another similar authority. And state that it ought to exist.

But even with that the ICO will almost always side with the organisation concerned.

Maybe it’s because caseworkers believe its impossible for a public organisation to deliberately misinform a requester on a procedure, or indeed anything else?

J Roberts left an annotation ()

"So as your name is not on the document, any later SAR search doesn’t find it."

It is easy to see how this practice makes a mockery of FOI.

FOIA: '“ is not a statute that proscribes any particular organisational structure or record -keeping practice in public authorities”. This is the case even where the public authority is subject to record - keeping obligations imposed by another statute.'

Judge Wilkely quoted in DN:

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

From the same DN:

'The Commissioner’s guidance on “Determining whether information is held” says that when investigating whether a public authority holds information , it will look at whether the public authority has conducted sufficient searches for the information.'

The PHSO (other public authorities may do the same) use colour categories to refer to individual staff names. Do you need to know the colour to obtain all relevant information?

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

J Roberts left an annotation ()

correction: Judge Wilkely was quoted in a First-tier Tribunal decision, not an ICO Decision Notice.

Jt Oakley left an annotation ()

Thank you J Roberts .. most interesting.

You are right in that the FOIA is now becoming very much less effective for the public as organisations have found ways to get round it. Combined with having to process requests to internal targets and legal time limits.
Responses are not exactly running as the Acts intended. Although it's patchy.

:::

I see from the case above that ICO made its usual judgement in favour of the organisation, even though, logically, if it’s doing business with another organisation ....some data must exist..... Unless it’s cash in hand.

Why on earth did it end up in court?



I’ve argued the similar logic with the ICO,as regards missing paperwork in a SAR, simply because the FOIA team must have checked with the department concerned in order to provide a response at all.

Got nowhere.

:::

My take on it is ..

If a requester’s name is replaced by a file name - A1244 - to send the FOIA request to other departments, then if the data processor can link this identifier to the person by accessing files, then the requester should be provided with the data.

In the PHSO, the SAR request with name only ( and sometimes that isn’t complete) goes to departments which the FOIA employee think the requester ‘might’ have been in contact......So even that is guesswork.

Let alone working out any file identifiers.

:::

Linked information :

This is the explanation of linked information that the ICO gives:

https://ico.org.uk/media/for-organisatio...

Therefore I still can’t see why these linked file number identifiers don’t apply.
:::

Theoretically the ICO investigator should presumably use common sense to define whether or not the FOIA team can produce a response to a request, without consulting anyone else on the staff. And question how a very specific response was given otherwise.

Nb My impression is that FOIA teams must be intellectually way above the more erudite University Challenge team players and provide the response - because that’s what the ICO accepts.

But, in practice, ICO staff must be overworked with the amount of FOIA requests. And seemingly caseworkers just take the easy way out and come to the conclusion that if the FOIA team SAYS it provided the response to the request itself - without consultation - or if it has provided everything due ...then that’s it.

Case automatically decided in the organisation’s favour. Easy peasy and targets are hit.

:::

Some helpful definitions from an Irish site, as we are under EU law, even after Brexit.

Rather amusingly, SAR encompasses physical descriptions.

If a person is described a ‘short American film actor that does his own stunts in action films ’, the linked SAR data would presumably have to be supplied to Tom Cruise ...if he made SAR request.

The question is would the data controller be able to identify him from the description?

So that’s another ‘out’ if the answer was given as no.

What is Personal Data?
The definition in the
Data Protection Acts
reads:

"personal data" means data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller;

A similar definition is contained in the
EU Data Protection Directive (95/46/EC)
:
"personal data"  shall mean any information relating to an identified or identifiable natural person ('Data Subject'); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.

The definition is – deliberately - a very broad one.  In principle, it covers any information that relates to an identifiable, living individual.  However, it needs to be borne in mind that data may become personal from information that could likely come into the possession of a data controller.

There are different ways in which an individual can be considered 'identifiable'.  A person's full name is an obvious likely identifier.  But a person can also be identifiable from other information, including a combination of identification elements such as physical characteristics, pseudonyms occupation, address etc.

The definition is also technology neutral.  It does not matter how the personal data is stored – on paper, on an IT system, on a CCTV system etc.

More extensive guidance on this topic is contained in
Opinion 4/2007
of the
EU Article 29 Working Party

https://www.dataprotection.ie/docs/What-...

J Roberts left an annotation ()

"I see from the case above that ICO made its usual judgement in favour of the organisation, even though, logically, if it’s doing business with another organisation ....some data must exist."

Exactly. From the appealed Decision Notice:

"The Commissioner did state that she was aware that ‘contracted’ does not necessarily mean that a contract is in place between the University and Western Union."

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

But from the First-tier Tribunal decision:

"It was patently incorrect for the University to have said that there was no contract between itself and WUBS."

From the appealed Decision Notice:

"After reviewing and considering the responses provided by the University and without any evidence to the contrary, the Commissioner is satisfied that the University does not hold any information falling within the scope of point 1 of the revised request dated 2 February 2016 and point 3 of the request dated 26 February 2016."

But from the First-tier Tribunal decision:

"I find it unlikely that the University would not have held , at a minimum, the Travelex Application Form, a document which was signed in 2009 by the then Director of Finance whose signature and e-mail address appears on the form, along with the names, positions, e-mail addresses, and signatures of four members of staff at the University which appear under the heading “Staff Authorised to Create and/or Approve Orders”.

Jt Oakley left an annotation ()

I agree.

I don’t know if all the courts have the same set up but mine was a QC , who asked the initial sharp question about S16.It hadn’t occurred to me that that was so important.

But it was obvious from the paperwork that I was being ‘played’ and the vex should never have been made.
(In fact they seemed surprised that I’d kept my patience)

Nb This is a key factor. Gaming responses ( above) are DESIGNED to get you to lose your temper.
.....Which means this can be used against you in court.

Another tribunal member was a person who had a legal degree ( although I don’t believe you have to have one ), who knew exactly where the evidence I was giving was in the stack of evidence papers. Credit there as it was quite a stack.
And another member of the public, to give balance.

:::

But why is it only at at the expensive tribunal court stage that common sense seems to prevail that documents logically should exist?

J Roberts left an annotation ()

"But why is it only at at the expensive tribunal court stage that common sense seems to prevail that documents logically should exist?"

Which makes me think: "How can the Commissioner fail to spot an obvious failing on the part of the public authority?"

A great thing about Whatdotheyknow is that you can see how statutory bodies involved in handling complaints sometimes make perverse and unsustainable decisions. You can also see how tedious and difficult it can be for those wronged to get justice. If it is more convenient for the ICO to dismiss than uphold substantial complaints (thereby avoiding any tedious and difficult challenge by the public authority), an unconscious bias may incline case officer to miss gaps that should logically exist. It is also likely that a significant number of cases brought to the ICO concerning missing documents that logically should exist never make it to the formal decision stage (preliminary stage only). These cases will not benefit from common sense.

Jt Oakley left an annotation ()

Thanks J Roberts

I can’t speak too highly of WDTK as the paperwork can’t be ‘lost’, destroyed under the three month destruction policy
( if it isn’t down to three days by now). It’s also easier for tribunal members to follow it in court.

===

I agree with your the reasons why the ICO seems to only give cursory readings to requests now, in comparison to what it did in the past. I would assume that depleted budgets are responsible.

That’s why I want to know why it just can’t apologise if, at a later date, the organisation has been found to be ‘economical with the truth’. It is not the fault of the requester.

So I think it’s something which should be put right and I intend to put the position to my MP, once the ICO responds, with the data that it has in file which prevents it from doing so.... since the provision of compelling ‘new evidence’ is unacceptable.

REPUTATIONAL DISADVANTAGING

It is unjust that organisations should be backed when they withhold the requested data and later provide it.
Clearly they should be at least warned, or fined, for this gaming strategy - Rather than the requester taking the vex hit, by wrongfully being placed in the position.

And the ICO besmirching their reputation as a result - because WDTK requests can be tracked via the ICO’s decision website by a search of the request terms.

***
VEXATIOUSNESS OF THIS REQUEST

The complaint about ‘vexatious’ nature of this request has been removed.

It is not a personal request, or description that the ICO seems to favour now of ‘frivolity’, as I am apparently not alone in wondering about the position.

All Acts are open to change if they are proved to be unjust. So it is reasonable to ask why.

J Roberts left an annotation ()

"It is not a personal request, or description that the ICO seems to favour now of ‘frivolity’, as I am apparently not alone in wondering about the position."

A case worker can be quick to back an authority that unreasonably considers a request vexatious:

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

From this Decision Notice:

"However, as in this case, when one person in the group or campaign has made a request and then it is followed by a similar or the same request from another person in the group or campaign then this can place a disproportionate and unjustified impact on the council in having to respond."

But from a recent First-tier Tribunal decision by Consent Order:

'Paragraph one of Decision Notice FS50661686 dated 20 June 2017 be
substituted in the following terms:

“...The Commissioner finds that the Council was not entitled to rely on section 14(1) to refuse to comply with the Appellant’s request of 26 September 2016.

The Commissioner requires the public authority to take the following step to ensure compliance with the legislation:

issue a fresh response under FOIA without relying on section 14.'

The Commissioner, in other words, has decided to fix her mistake very late in the day.

The GMC publishes a list of doctors who have been issued with "warnings" or "undertakings":

https://www.whatdotheyknow.com/request/4...

If a list of case workers who clearly messed up was publicly available, and I am making no comment on the blameworthiness of any case worker in particular, it would show a commitment to driving up standards.

J Roberts left an annotation ()

Jt Oakley left an annotation ()

Tut tut... J Roberts.

Another court with common sense.

There must be some reason why it seems to fly out the window at the ICO stage.

I’d love to know why.

J A Giggins left an annotation ()

A very informative request, and extremely encouraging to see that 'vexatious' refusals rubber stamped by the ICO can be overturned.

Jt Oakley left an annotation ()

Thank you JA Giggins.

Lets hope data ICO throws some light on why decisions can’t be revoked.

If requesters are being timed out by the release of the non-existent information after the decision is made , so the requester cannot receive the Justice of an un-vexed request ....since now they have the requested information, it continues to support the very organisations which have flouted the law, at the detriment of the requester.

To be fair, in my case the organisation concerned sent the ‘non- existent’ information to me by private email while the ICO was considering its decision.

But ‘ forgot’ to tell the ICO. I assumed the the ICO had received it and that the complaint has been closed,

So was amazed that my request was then judged to be vexatious by the ICO.
I informed the ICO - but nothing could be done.

J Roberts left an annotation ()

"There must be some reason why it seems to fly out the window at the ICO stage.

I’d love to know why."

One thing Neil Wilby mentioned (see above) is that someone from the IPC now works in a senior role at the ICO. His concern raises the question of possible unconscious bias on the part of case workers. For example, would the ICO consider someone who previously worked for, say, the Local Government Ombudsman, best suited to deal with complaints concerning the Local Government Ombudsman?

In the matter of the Consent Order, why did the Commissioner contact the FtT to withdraw the vexatious charge?

The complainant, I presume, has lodged an appeal. The Commissioner does not expect the vexatious charge to stick. The Consent Order avoids the potential embarrassment of the Commissioner having to defend the indefensible. Unfortunately, we do not know how many similarly "vexed" complainants chose not to proceed to the First-tier Tribunal. Their closed complaints remain categorised as vexatious. These complainants may have been worn down by the complaints process, or they may have seen little hope in the Commissioner's decision being overturned. They may have no knowledge of ICO errors.

J Roberts left an annotation ()

Another "fundamentally flawed" ICO decision which relied on "a misleading and inappropriate analogy". This appeal concerns the disclosure of a document presented to a parish council. Reference is made to to the Nolan Principles and the reasonable expectations of a public office holder to privacy.

From the Decision Notice:

"The Commissioner concludes that it would be unfair to all of the parties involved to disclose the requested information. It is clear that disclosure would not have been within their reasonable expectations".

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

But from the Firt-tier Tribunal decision:

"23. The ICO’s position in respect of fairness is untenable".

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

From the Decision Notice:

"36. The Commissioner acknowledges that the public has a legitimate
interest in knowing how the grievance was investigated and the outcome of that investigation but in this case she considers that this is outweighed by the individuals’ strong expectations of privacy and their right not to have and unwarranted intrusion into their private lives."

But from the First-tier Tribunal decision:

"25. It is hard to see a more clear cut case of a FOIA request pursuing a legitimate interest."

From the Decision Notice:

"38. The Commissioner has therefore decided that the council was entitled to withhold the information under section 40(2), by way of section 40(3)(a)(i). "

But from the First-tier Tribunal decision:

"The ICO in mechanically applying the provisions of the DPA without proper scrutiny".

Jt Oakley left an annotation ()

Thank you J Roberts

Very interesting.

A tangled and difficult case but the judgement seems to be is based on the ‘greater good’ principle.

Simply:

A Is it in the greater good that the councils cover up abuses of public office from the public by interpreting the FOIA by narrow data principles ? ( To be fair, the council seemed to be terrified of the lawyers concerned).

B Or that the people who pay for the services be informed of the processes and decisions on how their money is spent?

So it is this paragraph below that interests me particularly:

‘21, Expectations as to privacy of holders of public office are radically tempered by the clear obligations of office, for this reason alone the decision of the ICO is fundamentally flawed’.

Logically right and just.

Because, the names involved could easily have been redacted.

Why have an FOIA, if abuse of public office is protected?
The Tribunal recognised the greater good and brings in the Nolan principles - but the ICO failed to do so.
So I wonder if the ICO is precluded from doing that, as well as not apologising?

====

Nb This case is somewhat of a parallel why I went to court, involving NHS file data.

Lost of course - The police investigation had not started at that point,which might have made a difference.

All I required was to know the how, what and why external companies advised the NHS not to hand over legally due records.

***WHAT was stated, rather than WHO stated it. The data in a redacted form. ***

The ICO argued that I could have ‘guessed’ who made the comments. So I couldn’t have the data, even though i could not know how many companies the NHS had employed to stop me reading the legally due medical records.

So, from my small knowledge of NHS FOIA enquiries, the ICO has never made a Decision based on the fact that something illegal has, or has, clearly gone down. ...And that’s even being provided with compelling evidence mistakenly given to me by the NHS.

And therefore the individual’s data protection is NOT outweighed by the public right to know.
Simply to stop it happening any again.

====

Maybe it needs more expansive legal minds to widen the ICO’s common *anti- utilitarian narrow focus on protection of the individual at the expense of the many?

===

Nb Utilitarianism
Doctrine that the useful is the good and that the determining consideration of right conduct should be the usefulness of its consequences. Specifically a theory that the aim of action should be the largest possible balance of pleasure over pain or the greatest happiness of the greatest number.

J Roberts left an annotation ()

"Maybe it needs more expansive legal minds to widen the ICO’s common *anti- utilitarian narrow focus on protection of the individual at the expense of the many?"

The inappropriate use of section 40(2) by the Commissioner can conceal nasty truths from the public. Despite the council wishing to respond to the request, the Commissioner thought otherwise - perhaps "spooked" by the threat of defamation action against the council. The ICO has got to up its game if it is to demonstrate that it is on the side of the many, in my view. Judge Hughes did not pull his punches.

Jt Oakley left an annotation ()

The council would have had its own lawyer, who could of asked for advice from an FOIA specialist.

Generally the easiest thing is to withhold any embarrassing data, as the councils don’t get FINED if they get found out. Or other government organisations. (Just private companies for misusing data).

Maybe they should? As they have broken the law. And spent public money in the process.

==

Independent

ICO is supposed to be entirely independent, and just follow the law, not have a preformed- view for either party.
So it’s function is not to, protect, or support the requester, any more than agree with organisation concerned.

It just has to make a decision by applying a the public interest test ( if it applies to the request) and weighing it up correctly. Which admittedly isn’t easy.

But, in practice, the ICO’s caseworkers seem to be interpreting their own prejudices more regularly (Even given that we all have prejudices and lack of information in some respects ).

Such as the bizarre ‘ frivolity’ decision, when a request shows no resemblance whatsoever to frivolity. If you ask a caseworker to substantiate this vexing frivolity, the response is normally to shut you down.

So you get the feeling that there is no legal basis, other than panic, or guesswork, for making vex decisions.

Vexing now seems to be the go-to shut down, when there is no logical legal FOIA reason for doing anything that requires the application of another section.

===

So, at the moment, the court Decision result amounts to a ‘Tut’ ...which can be almost ignored by the organisation concerned. Because the organisational shame that occurred when the Act was new, no longer seems to exist.
Who cares, if it doesn’t involve money?

For example,In my case, the organisation’s internal documents state that it was ‘all the ICO’s fault for but defending the case rigorousky enough’. When the ICO had been badly misinformed by this organisation.

But that doesn't quite explain why the required ICO ‘balance’ seems to be so in favour of organisations when they just say ‘data doesn’t exist’ . It seems that, as an FOIA professional is ‘speaking’ to ICO FOIA professional, that counts more than the requester argument.

It's also just easier to agree with the organisation that ‘no data exists’ .. to hit the personal ICO internal caseworker target and get onto the next case, than consider that if the data should logically exist, and that the organisation is deliberately misinforming the ICO.

—�

The hole in all this is that ICO caseworkers don’t understand the requested organisation concerned and why the info should logically exist. And anyway, even if the suspicion is that it might exist, how does the ICO prove it?

So an apology from the ICO at a later stage, based on new compelling evidence, doesn't really reflect on it as it is an organisation that has been misinformed.

So I’m sure an apology could be made to the requester, stating that the ICO was misinformed at the time of making the decision. I’ll have to wait and see why not.

J A Giggins left an annotation ()

Re: "Vexing now seems to be the go-to shut down, when there is no logical legal FOIA reason for doing anything that requires the application of another section"

I couldn't agree with you more on this J T Oakley , and it's a win win for the organisations concerned - at best they both shut down the complaint and deter the requester ( and others) from making future requests, at worst they have several months if not years of delay whilst the is upheld request is considered by the ICO and Tribunal. And if the case is not upheld ( due to the easy acceptance of incorrect and misleading "facts" by both the ICO & Tribunal) then in my experience they selectively use your previous use of your information rights to justify future vexings - playing the person rather than the ball and ignoring the fundamental principle of FOI that requests are supposed to be applicant and motive blind.

Jt Oakley left an annotation ()

Thankyou JA Giggins,

I agree. Never a truer word was spoken.... The player not the ball.

The outcome seems to be that if the requester continues to ask for data they know exists, or are 99.9 percent sure exists, they end up being a vexed party, for continuing to point the data exists.

Not the single request. Because the forced clarifications and other requests phrased after clarifications are taken into account when vexing one request.

1. The request either gets shut down by a vex.
2. Or it takes so long to process and it’s ‘news value’ diminishes, as events overtake the reason for the response.
3. The requester gives up, as some requests can take over a year to process.
4. Or gets timed out from the court referral period

If a requester’s request gets unfairly vexed , mine have been twice ( one court upheld) and the other the requested data obtained from another more willing and less aggressive organisation, its extremely upsetting to find requests suddenly subject to mysterious vexing, where none has logically occurred. Because the vexing reasoning, other than you continued to ask for data that you later got, is absent.

In other words, challenge the ICO ( even if you win in court) or complain about a caseworker ...(many are diligent and really quite excellent but they are not all perfect ) and you become problematic and an automatically subject to having your requests vexed. And it appears that you cannot request that certain ICO team members do not continue to investigate your requests.

Is the intent to shut down those who win in court, or justifiably make an ICO service complaint?
As you say....The player, not the ball.

J Roberts left an annotation ()

Here is another Neil Wilby complaint. He was 'vexed' by Durham Constabulary, but he writes that the ICO has overturned the decision. Some may find interesting his intention to pursue a claim for damages against the police because of "highly defamatory" allegations he alleges were made against him on the What Do They Know website:

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

Jt Oakley left an annotation ()

Obliged J Roberts.

Interesting in that a requester is once again being accused of being ‘frivolous’, when there is absolutely no evidence in the wording of the request to presume frivolity.

This is his request:

In July or August 2013 Durham Constabulary were asked, on behalf of North Yorkshire Police, to investigate alleged fraud concerning a company called Dales Timber Ltd. The case attracted widespread publicity, including in the national press.
The information I seek can be summarised as follows:
1. The operational codename given to the investigation.
2. The terms of reference.
3. The name of the Gold Commander.
4. A copy of the Gold book (otherwise known as policy log or policy book). It is accepted that this will be redacted to exclude personal information/policing techniques
5. A copy of the investigation outcome/report. It is accepted that this will be redacted to exclude personal information/policing techniques.
6. The amount charged by Durham Constabulary to North Yorkshire Police as the cost of the investigation.

=========================================

The ‘frivolous’ accusational response from the police:

‘Having considered your request I am of the belief that it is not made within the spirit of the Act and as such is frivolous in its nature and that the time spent in answering the request would place an undue burden on staff, diverting them from their core role’,

.......when the request is anything BUT frivolous.

====

ICO DEFINTION

Frivolous requests The subject matter is inane or extremely trivial and the request appears to lack any serious purpose. The request is made for the sole purpose of amusement.

====

It seems that ‘frivolity’ was pasted on once more into the response - to deter the requester and not because his request was frivolous... or could be logically argued as being so. How? I just can’t see it.

But I’m constantly surprised that the ICO doesn’t appear to read its own definitions. Surely its caseworkers have access to the ICO explanatory statement?

It’s demeaning to a requester has a justified reason for making a request to be told it is ‘trivial’ or ‘inane’.
And then have the ICO back the organisational judgement of frivolity, where it is clear that the subject is embarrassing to the organisation. The ICO has no remit for personal opinion. It has to follow its own definitions. Or redefine them.

====
There is a tactical reason for this.

DEFENSIVE MUD SLINGING

Frivolity has to be displayed in the request, not just accept any *defensive mud* the organisation has thrown at the requester.

That sort of unduly aggressive response against a requester, rather than the request, is - in my experience - almost certainly the mark of a lawyer, rather than an FOIA employee. And lawyers love vexing requests because they are used to defining anyone who asked questions as being ‘vexatious’, rather than legally asking for information via the FOIA.
They can’t seem to get their heads round the fact that It’s the request is vexatious, not the person.

Because it’s all about money. And the loss of it. And thats what lawyers do. Defend an organisation from losing money.
So a detrimental description of the request ( implying the requester is vexatious , or simply nuts) is shoe-horned into the response.

LEGAL VEX STRATEGY

The NHS uses exactiy the same strategy when the bereaved as for medical records under the Access to Health Records Act.

The requester must be personally impugned - their character demeaned - in case of later COURT ACTION.

So it’s an indicator that the FOIA response has usually been dictated by a lawyer ...with that in mind, rather than an FOIA employee, who supposedly uses different criteria. It’s the FOIA request, rather than an ‘annoying’ person, who must be stopped from asking questions.

===

It looks to me like the ICO seemingly takes fright at any potential legal input, which could affect its own Decision as a later point and automatically decides against the requester.

But I’d love to know how the ICO’s Frivolity Yardstick works.

J Roberts left an annotation ()

'Is the intent to shut down those who win in court, or justifiably make an ICO service complaint?"

Here is a recent ICO decision (vexatious) related to the matter, though the charge that the Commissioner is anything other than even-handed is strongly challenged:

"46. For the avoidance of doubt, the Commissioner makes clear that she has determined this matter on its merits and has not had regard for the complainant’s past history with her Office in other matters.

47. The Commissioner noted the complainant’s concerns that her staff had, in his view, poorly investigated some previous matters in which her decision was subsequently overturned by the Tribunal on appeal. She noted too his description of the ICO caseworker in this matter as “gullible and incapable of impartially investigating any issue involving MOJ”, adding that, in his investigatory work, he had shown “either stupidity or unacceptable arrogance and had been more poodle than watchdog”.'

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

Jt Oakley left an annotation ()

The mistake he made was singling out a caseworker... and making accusations.

They may well be true ( and I’ve felt that way over two caseworkers, one of who told me her medical problems and criticised the equipment that the had ICO had provided... as an excuse for failing to provide information ) but it’s fatal to mention one particular caseworker.

IMO - The same applies in the Dransfield case. He spent too long criticising the authority ...and its handling of the request, than sticking to the point and FOIA law, so it became personal.

People who have not made requests before tend to be would up by the gaming which goes on and see the responder as an adversary. Its a big mistake to do so.

====

The other problem is that there are teams within the ICO.

Some are very good and anyone would be appreciative of their work. It is impressive when the ICO carefully weighs up the information and gives a solid, logical and legal explanation - whether you agree with it or not. Because you feel it’s been done fairly.

But I know that if my complaint request is handled by one particular team it’s almost certain to fail.

My impression is that it’s a waste of time appealing against the work of any caseworker in that team. It will not be upheld.
And I’m not the only one who thinks so.

navartne left an annotation ()

Happen to stumble across this:

https://www.foiman.com/archives/2774

and linked article:

https://www.foiman.com/wp/wp-content/upl...

mentions some strategies used by PB's to prevent a requester from appealing a decision. e.g. use of formal and legalistic wording that may be intimidating... Verbose responses used with an intent to bamboozle the applicant so they will be tempted not to appeal a decision.

Key part from article above:

"Good refusals focus on explanation, not legislation. Practitioners should ensure that they understand why information is being withheld, and that they explain it clearly in their response. If they are unable to do so, it may be a prompt to consider whether the decision is the right one."

A good explanation (in the case where PB hasn't provided a timely response. i.e. dragged it's feet) starts with an apology, and Yes, I've had something similar to the Non-apology apology from the ICO.

their decision notice said "Following an internal review, FOS wrote to the complainant on 29 July 2016. It acknowledged that the complainant considered that some of the information with which he had been provided was not relevant as FOS had already provided this information to him in response to one of his separate requests for information. FOS said that if a request is linked to another request, it may include or repeat similar information ....."

Jt Oakley left an annotation ()

Thank you Navartne.

It’s a very good article by Paul Gibbons. Well worth reading,.

I can understand why the ICO just ticks off the organisation for late replies, as, presumably, it hasn’t got the power to do anything else.

But when it’s obvious that its gaming, it would be fairer if the ICO veered away from approving of the organisation’s vexing the request because simply gaming is designed to provoke the requester.

Especially if the request involves information with which a new requester has a personal ( and sometimes emotional) interest in obtaining, its not surprising that they drift off topic.

BETTER BALANCE

IMO: This balance should be weighed more thoroughly by the ICO, before agreeing with a vex.

==

Not only is the requesters responses vex worthy? but ......

1. What drove them to make several requests - was it gaming by the organisation?

Lack of S16 for instance, late responses, demands for undue clarifications - especially on the day before the statutory days have run out.

Nb.. I’ve been asked to ‘clarify’ what ‘the internet’ is.

2. Did the requester behave angrily after the organisation has put the requesters personal info on WDTK?

Nb Apparently this data breach is less blameworthy than the requester getting angry and accusative ....because his/ her private and personal data has been made available to potentially millions of people.
Therefore - Is the requester’s anger justifiable?

3. Suddenly sending information to the requesters home address, rather than replying on WDTK.
It’s an indication that the organisation is gaming, as responses are supposedly for everyone to read.

Nb It’s not called the ‘Freedom of Information Act - barring WDTK readers’ .

Why was this done? Was there a justifiable personal data reason for doing so, or was it to prevent open access to the general public?



SHORTERM GAINS - LONGTERM FINANCIAL LOSSES.

1. Overall this unfair gaming drives the requester toward a potential vex request, even though the initial request may be absolutely benign. So a balance should be struck earlier by the ICO before the Decision gets to the courts, which seem to have a more sensible and just application of the law.

Because the whole cost must be carried by the public. It just doesn’t stop at the ICO’s Budget.

2. ...And if the organisation concerned gets away with NOT providing the requested data, via clever gaming - leading to vexing , the logical outcome is that it will repeat this strategy again.

And to repeat the strategy, by drawing out another request, over many months, takes even more public money...because it’s a publically funded organisation.

Other organisation will follow the gaming pattern. And more now seem to be doing so.

So, inevitably, the cost to the public purse will rise.

navartne left an annotation ()

It's good that you are asking all the right questions.

BTW: IMHO The ICO has the power to say "the PB was in breach of s17 of the FOIA" in their decision notice.

I've encountered an instance where the public body (pB) failed to respond within the statutory 20 working days. Soon as I sent them a reminder, they vexed me.

When I complained to the ICO. They first said they would investigate the section 10 breach (not responding within the 20 working days). However, this element never made it to their decision notice.

When it came to the Tribunal stage, the ICO said 'it was not relevant' so they decided not to include it in the decision notice (as it was NOT part of their investigation - don't forget initially they said it was).

The ICO also said "The Commissioner considers this is a relatively minor breach of the statutory time frame, and did not warrant comment in the Decision Notice." - because the PB was only 2 days late. Of course, we don't know how late they would have been if I had not sent the reminder.

The ICO does have various 'soft' powers, both specified specifically, and discretionary (e.g which PB's to monitor - seems they have some sort of convoluted system in place to pick the nasties). Sadly, IMHO, I'm pretty sure they do not use their 'soft' powers appropriately.

BTW, when the ICO says "It acknowledged that the complainant considered ..." it's referring to an opinion formed by the PB, as to what the opinion of the applicant. Seriosly?, are we now discussing opinions on decision notices?

Jt Oakley left an annotation ()

I agree Navartne.

There seems to be a pattern emerging in that opinions from the PB...(never know what the correct term is..) seem to be influencing the Decision more than previously.

It could be it’s just quicker to cut ‘ n paste the PB’s opinions into the Decision... to support the Decision, rather than use any new original evaluation phrases, to save time.

But the ICO doesn’t seem to mind much how it is driven as , as you say, the opinion of the PB of the requester is quoted in the Decision ....even if it’s not relevant, which is a bit of a giveaway.

And certainly not relevant to determining the application and value of FOIA Sections,..unless, of course, it’s a vex.
Interestingly to me the court wanted some sort of proof that the FOIA team had been entirely overcome by the harassment of having to provide simplistic information and so wheeled off off to a safe space to recover from the terrible ordeal.

It wasn’t just enough ( as in the internal PB notes ) to say: ‘We’ve had enough’.

That opinion wasn't compelling evidence for the court, but the ICO accepted it,

DRIVEN

The PHSO even told the ICO that it wasn’t the caseworkers business to check the information I had given the ICO, the caseworker backed off.

Shocked as to the extent that the PB can drive a Complaint. Court recognised it...why didn’t the ICO?

If I’d have been the ICO senior officer, I’d have been furious that a PB could tell a caseworker the limit extent of their own investigation. ... Especially as it turned out that there was, indeed, something to discover.

SECTION 16

The other thing I’ve noticed is that if the PB doesn’t apply Section 16, and if the complainant doesn't specifically mention it in their complaint, its more than likely that it passes ICO by too. So it’s worth mentioning it.

LEGAL TIME LIMITS

And surely either the 20 day time limit is set down in law, or it isn’t?

The ICO can’t state that it is 22.... 26, or a self-determined 52.

If the ICO wants to choose the number of days applicable to each request, then it should go through the proper change procedures for a new FOIAct stating the number of response days should be at the ICO’s discretion.

J Roberts left an annotation ()

The ICO's decision notice concerning Neil Wilby's request to Durham Constabulary (see above) is now available:

"She [the Commissioner] accepts that there is a degree of media interest in the matters covered by the investigation, as evidence by the coverage it has received in Private Eye. There is also a public interest in transparency regarding criminal investigations of people who have links to the police. The Commissioner considers these points lend weight to the view that the request was a reasonable one to make."

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

Latest information on Mr Wilby's legal action against the Police and Crime Commissioner for North Yorkshire and her Chief Constable over "persistent data and information breaches" can be found here:

https://neilwilby.com/2016/06/10/chief-c...

Jt Oakley left an annotation ()

Thank you. Very interesting.

==

From the Wilby Decision..

‘The Commissioner has born in mind the central reason for section 14, which is to protect a public authority and its staff from requests which cause a disproportionate or unjustified level of disruption, irritation or distress or which dominate its administrative resources.

She is not satisfied that Durham Police has demonstrated that the request meets these criteria. Rather, it appears to have drawn on its awareness of the complainant’s interactions with other public authorities, and of their responses, to conclude that this request, too, is vexatious’.

===

The PHSO used ‘distress and harassment’ to vex my request about its admin office.

I asked for the proof that the request had caused undue stress these in the FOIA department, since it was a simple enquiry:

1. Were any staff off sick?
2. Attended counselling?

What was the proof of this allegation, other than the opinion ‘We have had enough’? (This was the internal legal judgement for vexing the request).

Staff on the request numbered around eight, so the workload involved in providing details of a small office, including its telephone number, wasn’t that onerous.

The PHSO refused to answer and could give no evidence on the extraordinary stress of having to deal with the request - which the court duly noticed.

This is how the court judged it:

‘We note the Respondent also accepts to a degree these findings of fact but decided that the effect of the request was such as to cause harassment or distress.

We do not accept this as proven on balance on the papers and have heard no evidence in support of these assertions.

Further if there were any perceived harassment or such distress then the burden for such, in our considered view, cannot be placed solely on the Appellant or her request’.
===

In other words, the PHSO’s FOIA and Legal departments harassed me as much as I harassed them.
In fact - more - as the request was gamed.
And the court recognised the fact.

Nb Therefore I would therefore suggest to anyone accused of providing a vexed request to ask the Public Authorities for proof of the accusation that it has made.

===

...continued from the Wilby case

‘The Commissioner has born in mind the central reason for section 14, which is to protect a public authority and its staff from requests which cause a disproportionate or unjustified level of disruption, irritation or distress or which dominate its administrative resources.

She is not satisfied that Durham Police has demonstrated that the request meets these criteria. Rather, it appears to have drawn on its awareness of the complainant’s interactions with other public authorities, and of their responses, to conclude that this request, too, is vexatious.

57. The Commissioner’s guidance states:
“It is important to remember that section 14(1) can only be applied to the request itself, and not the individual who submits it.

An authority cannot, therefore, refuse a request on the grounds that the requester himself is vexatious. Similarly, an authority cannot simply refuse a new request solely on the basis that it has classified previous requests from the same individual as vexatious.’

===

There seems to be a move by certain lawyer driven Public Authorities, rather than FOIA department driven, (the Land Registry seemingly being one) to scour the Internet for any negative opinion relating to the organisation expressed by the requester.

Legal departments seem to believe in the reasoning for the vexation of a request includes demeaning and demolishing requester’s character ( rather as previously in rape cases) to prove that the requester is a ‘vexatious’ or the court equivalent of a ‘vexatious litigant’ .

Government - definition.
‘Vexatious litigants are individuals who persistently take legal action against others in cases without any merit, who are forbidden from starting civil cases in courts without permission’.

https://www.gov.uk/guidance/vexatious-li...

And therefore it’s necessary to chase ‘ or dig’ as the land Registry put it, around the internet, to find a ‘ free speech’ opinion that does not comply with its own organisational public relations statements.

This is with the aim of proving the vexatiousness of a supposedly ‘blind’ request - by belittling the character of the requester.

The extent of this is that, in the Land Registry’s case, its employee decided that I was a certain poster on Twitter .....even though the Tweet was anonymised. And that it must be taken into consideration, to prove me vexatious, rather than limiting its disapproval to a request involving a LR processing document.

===

In the Wilby case, the police seem to have not only trawled the Internet but added in the requester’ s dealings with another police force.... for good measure.

Sole aim: To demean his character.

But S14, as the Commissioner points out, the vex, is confined to the request itself.

Rather than a Public Authorities dragging up any opinion a requester might have expressed previously online.

Even a requester can modify their opinion over time.

And , as far as I know, UK citizens are still free to express opinions.

And who knows? They might be right.

- As in the Hillsborough disaster.

Even astoundingly, as in my case, in a past legal dispute that I had won (and therefore been proved right) had been chucked in to prove I was ‘manipulating’ a request for a process document.

What possible reason could expressing a valid and legally proved opinion have on the vexatiousness of myself and my FOIA request?

===

Q - How can the ICO possibly be expected to judge a person as a ‘vexatious litigant’? The issues, such as Hillsborough, are too complex.

Which is presumably why S14 specifies the request ...and not a ‘vexatious person’, as defined above by the government.

===

BEYOND the BOUNDARIES

I put this very point of PA’s extending their remit way beyond the boundaries of fulfilling an FOIA request before - to the ICO.

The ICO decided in the Land Registry’s favour. And I am not allowed to make any requests to it on a similar topic to the Land Registry. So I don’t understand this Wilby ruling:

‘Similarly, an authority cannot simply refuse a new request solely on the basis that it has classified previous requests from the same individual as vexatious’ ( above).

Fortunately I don’t have to make any more requests, as the Land Registry then provided the requested information ....that it stated it didn’t have ....to the ICO.

This was after the ICO decided that, as the requested information didn’t exist, my request and, indeed, it seems me as well, were both vexatious, seemingly deciding that I am a ‘vexatious litigant’.

Information Commissioner’s Office

25 October 2017

 

Case Reference Number IRQ0703750

 

Dear Jt Oakley

Request for Information
 
Further to your information request to the Information Commissioner’s
Office (ICO) of 2 October 2017 we can now respond.
 
We have dealt with your request in accordance with your ‘right to know’
under section 1(1) of the Freedom of Information Act 2000 (FOIA), which
entitles you to be provided with any information ‘held’ by a public
authority, unless an appropriate exemption applies.
 
Request
 
In your email you asked the following:
 
“1. A FOIA request is made.
2. An authority states that no data exists on record that would provide a
response to that request.
3. The ICO sides with the authority and upholds the authority response and
advises the requester to appeal in court. Even though the requester states
he/she knows the data exists and must logically do so.
4. The requester then receives the requested data ....that was stated not
to exist, by the authority.
5. And provides it as new evidence to the ICO.
6. But the appeal time limit to take the decision to court has elapsed.

Presumably any authority could use the same strategy ...to avoid the
requester taking any unjust decision to court.

Could the ICO please provide the ICO procedure, including the provision of
an apology, to right a provable wrongful response, when a requester has
been ‘timed out’ by this data withholding strategy.”
 
Information Held
 
We can confirm that we do not hold any information within the scope of
your information request, namely, we do not have a policy or procedure
which addresses the issue of “… to right a provable wrongful response,
when a requester has been ‘timed out’ by this data withholding strategy”.
 
However, by way of advice and assistance it is worth noting that, in
circumstances that it considers appropriate, the Tribunal itself will
allow an appeal to be lodged well beyond the usual 28 day limit. We
believe that in the past the Tribunal have allowed an appeal up to 5
months out of time, but we would advise you to contact the Tribunal direct
for further advice on this point.  The Tribunal can be contacted at
[1][email address] .
 
 
Review Procedure
 
We hope this is helpful, but if you are dissatisfied with this response
and wish to request a review of our decision or make a complaint about how
your request has been handled you should reply directly to this email
(leaving the reference number in square brackets intact), write to the
Information Access Team at the address below or email
[2][ICO request email].
 
Your request for internal review should be submitted to us within 40
working days of receipt by you of this response.  Any such request
received after this time will only be considered at the discretion of the
Commissioner.
 
If having exhausted the review process you are not content that your
request or review has been dealt with correctly, you have a further right
of appeal to this office in our capacity as the statutory complaint
handler under the legislation.  To make such an application, please write
to our Customer Contact Team at the address given or visit our website if
you wish to make a complaint under either the Freedom of Information Act
or Environmental Information Regulations.
 
A copy of our review procedure can be accessed from our website [3]here.
 
Yours sincerely
 
 
 

Antonia Swann
Lead Information Access Officer
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF
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Dear Information Commissioner’s Office,

Thank you for your reply

You state:

‘We believe that in the past the Tribunal have allowed an appeal up to 5 months out of time, but we would advise you to contact the Tribunal direct
for further advice on this point. The Tribunal can be contacted at
[1][email address’

===
Thank you - but you state ‘you’, in your reply.

This is NOT about ‘me’, as I have recently become aware that I am it alone in experiencing this problem, before I made the request. And, as I obtained the requested information, I never saw the point in wasting the court’s time.

In any case, my case is now way out of time. But thank you for the personal advice anyway.

===

Reason for the request:

This request was to find out about the internal ICO process, once compelling evidence of a personal injustice and infringement of the FOIAct by a public authority has been presented to the ICO.

Does the ICO have a procedure to right a provable injustice?

===
Reasoning:

This a PROCESS request, rather than a personal one, even though I am basing the process request after a personal experience. With the hope that the ICO has a formal procedure of righting an injustice on its records, given compelling evidence of deliberate withholding of the request data by a public authority.

The PROCESS which the ICO can adopt to right the wrong without application to court.

Especially as there would simply no point wasting a court’s time, in that once the withheld information has been given to the requester, logically the request has been fulfilled.

===

The outstanding point is that the vex of the Request and ICO accusations of the vexatiousness about the actions of the requester( in insisting that the information exists ..and continuing to ask for it) and should be provided ( to comply with S1) is still on ICO record.

With the vexed requester forbidden from contacting the illegally data-withholding authority.

This is a clear injustice, which the ICO should have the capacity to right, rather than the requester giving to go through the court procedure, which can be months long. And expensive for the public purse. And what would be the outcome? Logically the court would have the power not to uphold the vexed request.

But does that include the court having the power to instruct the ICO to right the injustice to the requester, by removing the instruction not to contact the Public Authority from ICO files? As this is a reputational slur, on the conduct of the requester, which remains.

===

FOIA Sections pertaining:

S1 General right of access to information held by public authorities.
(1)
Any person making a request for information to a public authority is entitled—
(a)
to be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b)
if that is the case, to have that information communicated to him.

1,https://www.legislation.gov.uk/ukpga/200...

2.s14 Vexation : A public authority is not obliged to comply with a request for information if the request is vexatious.(s14(1)) A request is considered vexatious if it is ‘obsessive or manifestly unreasonable’, harasses the authority or causes distress to its staff, imposes a significant burden, or if the request lacks any serious value.[11]

===

Therefore the point of this process request was to establish that:

1. The ICO cannot revoke a vexed request, or lift an instruction for the requester not to contact the Public Authority, once that decision has been made, despite the production of new compelling evidence supporting the requester.

2. And that the ICO can only do so on instruction of the court.

3. And that the ICO would not ( * maybe technically cannot ) contact the withholding public authority, even though it had broken the law, without the requester applying to the court that it do so - and being successful....on the compelling evidence that it had breached the FOIA which had been provided to the ICO.
- And a complaint about this breach made.

Nb With the point of stating that the requester is now absolved from refraining to make requests to it, due to its S1 avoidance of providing the requested data. And therefore no S14 vexatious ‘fault’ lying with the requester.

4. And the ICO is precluded from pursuing the S1 law breaking Public Authority, once having made a decision that data is not held ....even though it privabky exists and therefore the Public Authority had failed to comply with the law.

5. And it is ONLY by instruction from the court that the ICO can then pursue the S1 FOIA breach by the public authority, despite the compelling new evidence.... No complaint from the requester can be entertained without a court decision.

Could you please confirm that the above is correct and that the ICO holds no data on any internal process to correct a provable injustice, or pursue a public authority which has not clearly not complied with the FOIA, once a decision has been made.

Yours faithfully,

Jt Oakley

AccessICOinformation, Information Commissioner’s Office

Thank you for contacting the Information Commissioner’s Office. We confirm
that we have received your correspondence.

 

If you have made a request for information held by the ICO we will contact
you as soon as possible if we need any further information to enable us to
answer your request. If we don't need any further information we will
respond to you within our published, and statutory, service levels. For
more information please visit [1]http://ico.org.uk/about_us/how_we_comply

 

If you have raised a new information rights concern - we aim to send you
an initial response and case reference number within 30 days.

 

If you are concerned about the way an organisation is handling your
personal information, we will not usually look into it unless you have
raised it with the organisation first. For more information please see our
webpage ‘raising a concern with an organisation’ (go to our homepage and
follow the link ‘for the public’). You can also call the number below.

 

If you have requested advice - we aim to respond within 14 days.

 

If your correspondence relates to an existing case - we will add it to
your case and consider it on allocation to a case officer.

 

Copied correspondence - we do not respond to correspondence that has been
copied to us.

 

For more information about our services, please see our webpage ‘Service
standards and what to expect' (go to our homepage and follow the links for
‘Report a concern’ and ‘Service standards and what to expect'). You can
also call the number below.

 

If there is anything you would like to discuss with us, please call our
helpline on 0303 123 1113.

 

Yours sincerely

 

The Information Commissioner’s Office

 

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J Roberts left an annotation ()

Here is another request made by investigative journalist and justice campaigner Neil Wilby that again shows the ICO in a very poor light:

"This complaint has finally been logged by the Information Commissioner's Office (ICO) under reference FS50708629.

After a series of increasingly far-fetched reasons not to investigate, the ICO finally admitted, after threat of legal action from me, that the complaint had been 'overlooked' - and will now be treated as a priority.

It took 377 days to reach that point (21st October, 2016 to 2nd November, 2017).

Little wonder public authorities, such as North Yorkshire Police, laugh in the face of the so-called statutory regulator. "

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

Jt Oakley left an annotation ()

Thank you J Roberts.

Can’t help feeling sorry for him. Making a complaint to the ICO is so difficult. A lot of work and almost akways without purpose.

I must say that the biggest problem I’ve had with the ICO is that if you complain about the way an employee has handled a case, the complaint is given to the manager of the employee concerned.

—�—�

ICO - ‘Once a manager has considered your complaint, they will tell you what they have decided. The manager should reply within 30 calendar days of the complaint being raised with them’.

—�—�

S/he then decides whether or not the employee has been well managed - by themselves..

Not surprisingly it’s hard not to judge themselves excellent managers of their line employees who always produce highly professional investigations.

Even when they’ve been bellowing down the phone at complainants. (With similar supporting complaints online by other complaints ). Written points are often ignored.

So there’s no proof if complainants don’t tape phone calls. And the ICO doesn’t tape them either.

Why not? Too frightened? The Financial Ombudsman does...

Endgame is that the superbly attentive manager - who apparently has the superb hearing of a bat - states s/he overheard entire polite conversation from the next desk.

Complaint not upheld.

And you can get the same employee, in which you have absolutely no confidence, on your next case referral.
Bit of a manager’s jest that one.... How dare anyone complain about one of their team members?

++

So IMO there isn’t much point in complaining - unless you have a taped phone call.

===

Why doesn’t the ICO at least provide a semblance of an independent investigation by allocating complaints to other team leaders?

====

Here’s some ICO employee complaints and outcomes stats:

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

J A Giggins left an annotation ()

J T Oakley

A complaints system can never be effective when workers are asked to mark their own homework! From my understanding case officers do not make their decisions in isolation - cases are pre screened by a manager/supervisor both on allocation and before a decision notice is issued, so any complaints about how a case officer has handled a case might actually be about them following guidance from their manager/supervisor who ends up investigating the complaint! I appreciate that this is different from a case officer being rude, but the rudeness might simply be due to the fact that they don't want to go against the guidance of more experienced/senior staff. This is an issue that could be so easily solved by circulation of senior staff around different workgroups/teams that you wonder why the ICO hasn't done it, or why their auditors haven't suggested it.

Jt Oakley left an annotation ()

Thank you JA Giggins .

That certainly explains why the outcome of complaint cases.
I had two cases in mind.

1. One in which I had to hold the receiver away from my ear as the person was cross and very loud indeed. Even my OH, could sitting elsewhere, was wondering ‘what on earth is going on’.

2. The second in which it appeared that the caseworker just hadn’t bothered to read the request.

A.Adding in information that wasn’t there ( must have been supplied about me by the organisation concerned ) but it had no relevance to the request and my impression was that this was maybe where the inaccuracy crept in.

B. And even getting the information IN the request , including basic sentences and figures, wrong.
How on earth can that happen?

==

All organisations get it wrong occasionally - especially if employees are hard pressed to complete cases - but this was OUTSTANDINGLY wrong. In my experience, both working in government and private organisations, managers will at least want to correct the record and pick up on the factual inaccuracies - to safeguard their own performance.

So your explanation above, as to why certain ICO managers ( not all of them obviously) refuse to do anything about corrections, appears to be accurate.

Information Commissioner’s Office

10 November 2017

 

Case Reference Number IRQ0703750

 

Dear J T Oakley

Thank you for your further email of 25 October 2017, and please accept our
apologies for the delay in our response. 

We have noted the various comments and points you have made.
 
Further to the final five points you have made, you have asked “Could you
please confirm that the above is correct and that the ICO holds no data on
any internal process to correct a provable injustice, or pursue a public
authority which has not clearly not complied with the FOIA, once a
decision has been made.”.
 
We cannot confirm that the five points you have raised are correct, but we
can confirm that the ICO does not hold “… data on any internal process to
correct a provable injustice, or pursue a public authority which has not
clearly not complied with the FOIA, once a decision has been made.”.
 
However, in an effort to provide advice and assistance, we can confirm
that all decisions made by the ICO and the Tribunal are based on a
consideration of the evidence which is available at that time.  Once the
Commissioner has issued a Decision Notice under section 50 FOIA, she has
no powers to amend or set it aside. That is a matter for the Tribunal.
Revisiting a Tribunal decision is something which would have to be
addressed with the Tribunal.
 
Where it is the case that a requester has new, objective and compelling
evidence, which was not available at the time of the original decision or
Appeal, and that evidence indicates the Decision Notice or Tribunal
judgment was wrong, in the first instance we would suggest that the
requester concerned contact the public authority with that evidence
 asking it to respond afresh to a remade information request. If the
requestor remains dissatisfied at that point, they will be able to
complain to the ICO who will deal with matters as a new complaint.
 
It is open to a requestor who considers that compelling new evidence
renders a previous decision of the Tribunal flawed, to approach the
Tribunal with a view to lodging an out of time appeal of the original
judgment. However, as noted above, that is a matter for the Tribunal and
not the Commissioner to address. We would strongly recommend an individual
consider obtaining independent legal advice before pursuing such a course
of action.
 
I trust the above is of some assistance.
 
Yours sincerely
 
 
 

Antonia Swann
Lead Information Access Officer
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF
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Dear Information Commissioner’s Office,
Thank you for your reply.

And especially for the additional information.

My understanding is now that it s simply no use presenting compelling new evidence of a breach of the FOIAct to the ICO, once a Decision has been made.

And that a requester has to present the new evidence to a public authority which may have withheld, or previously lied about the data which it held - in order to avoid responding to an FOIA request.

Catch 22

The point is that there can be no Tribunal after the ICO decides that the held data ( later divulged) does not exist.
So a requester cannot re -present the evidence to a Tribunal: owing to the inability of the requester to present the evidence ( later admitted to exist) immediately after the ICO decision.

The second point is that if the ICO has stated that the request is S14 vexatious (for insisting the data, which now forms the compelling new evidence, existed) , surely no further approach can be made by the requester to the defaulting authority?

So seemingly the requester cannot contact either the defaulting authority, or the court.

Therefore , could you please confirm that, as your response seems to indicate, that the requester CAN represent compelling new evidence to the public authority..... having been previously been prevented by S14 vexing of the request from doing so?

==

As the onus seems to be therefore entirely on the citizen to chase a breach of the FoIAct, rather than the ICO, which has powers to deal with defaulting public authorities, where the citizen has none.

And is then prevented from taking the matter to a tribunal by the wrongful withholding of data evidence.

Especially if a matter has been ‘timed out’ from referring it to the court.

==

One additional point- Since the ICO has no power to remedy a breach of the FOIA, at this point, is there any remedy in law, where a citizen can sue a public authority for wasting his/ her time by undertaking such an illegal act?

Yours faithfully,

Jt Oakley

AccessICOinformation, Information Commissioner’s Office

Thank you for contacting the Information Commissioner’s Office. We confirm
that we have received your correspondence.

 

If you have made a request for information held by the ICO we will contact
you as soon as possible if we need any further information to enable us to
answer your request. If we don't need any further information we will
respond to you within our published, and statutory, service levels. For
more information please visit [1]http://ico.org.uk/about_us/how_we_comply

 

If you have raised a new information rights concern - we aim to send you
an initial response and case reference number within 30 days.

 

If you are concerned about the way an organisation is handling your
personal information, we will not usually look into it unless you have
raised it with the organisation first. For more information please see our
webpage ‘raising a concern with an organisation’ (go to our homepage and
follow the link ‘for the public’). You can also call the number below.

 

If you have requested advice - we aim to respond within 14 days.

 

If your correspondence relates to an existing case - we will add it to
your case and consider it on allocation to a case officer.

 

Copied correspondence - we do not respond to correspondence that has been
copied to us.

 

For more information about our services, please see our webpage ‘Service
standards and what to expect' (go to our homepage and follow the links for
‘Report a concern’ and ‘Service standards and what to expect'). You can
also call the number below.

 

If there is anything you would like to discuss with us, please call our
helpline on 0303 123 1113.

 

Yours sincerely

 

The Information Commissioner’s Office

 

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Information Commissioner’s Office

10 November 2017

 

Case Reference Number IRQ0703750

 

Dear JT Oakley
 
Thank you for your email of 10 November 2017, submitted in connection with
your previous request for information to the ICO titled “Apologies for
wrongful decisions”.
 
As your correspondence now only contains queries about the Freedom of
Information Act 2000, rather than being a request for information we hold,
it will be referred to our Customer Contact Team for a response.
 
Yours sincerely
 
 
 

Antonia Swann
Lead Information Access Officer
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF
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Jt Oakley left an annotation ()

Frankly I feel sorry for the ICO. It can’t desire to be an organisation which promotes injustice.
But It was a bad Decision.

Case:

I asked the Land Registry -

..What was the guidance given to employees when they changed mapping boundaries,.

Logically the Land Registry changes boundaries every day . And logically someone has to oversee it.

The Land Registry flew into what I can only describe as panic. Putting my file information and that of others on line, ( four times), seemingly treating an FOIA request as a legal case.

WDTK removed the personal case files.

===

The likely reason is that it had already had to pay be a sum for fouling up its boundary changing process before.

The request was an attempt to find out what was going wrong. And was the Land Registry continually making mistakes?Was it systemic, or just two cases?

The Land Registry stated that it gave its employees no guidance .. and that I was being vexatious via my request for continually asking for this procedure.

The ICO agreed. Despite the four Section 40 breaches - which, of course, prolonged the request.

==

Having eventually read the existing procedure, it appears I had scope to challenge yet another Land Registry change, as it hasn’t conformed to its own boundary change procedure , which, was, of course, always on file. As logic dictated.
So it appears to me that that was why it was withheld. And why the Land Registry reponses appeared to be dictated by lawyers, rather than FOIA respondents.

Having presented the ICO with the requested but withheld data, the ICO states that my request cannot be unvexed.
It can do nothing.

:::

My point is that since I have the requested procedure - but no remedy on the vex via a court, an apology would have been fine. But even with compelling evidence, the ICO cannot remedy a clear injustice,

And why doesn’t the ICO chase Public Authorities, which flaunt the Act that it is supposed to protect?

On both:

1 . the publically divulged personal data
2. and withholding of the requested information.

Because if a Public Authority choses to ignore the terms of the FOIA, and the ICO can do nothing about it logucally all Public Authorities can game requesters in this way. ....by taking exactly the same path.

Which makes a mockery of the ICO’s role.

J Roberts left an annotation ()

JT Oakley,

The ICO can't help and it seems the two suggested avenues of redress lead to dead ends. But in the following decision notice the phrase "still applies" would appear to offer a glimmer of hope:

"49. During the course of the Commissioner’s investigation, the MoJ confirmed that it was satisfied that that section 17(6) notice still applies in respect of this case and that it was relying on that notice as the basis for not having responded in this case."

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

The implication is that there are cases where a section 17(6) notice no longer applies.

Having run my eye quickly over a couple of dozen section 14 decision notice summaries, however, I saw no reference to section 17(6) in those that were 'upheld' by the Commissioner. Here is an example from one that was 'not upheld':

'She also finds that the Council was not obliged to issue refusal notices for subsequent requests in accordance with section 17(6) (where the request is considered vexatious, and an applicant has been notified in relation to a previous request that 14(1) applies, and it would be unreasonable for the public authority to service a further notice).'

https://search.ico.org.uk/ico/search/dec...

As for approaching the Tribunal, I agree entirely with your reasoning. I guess you would receive a letter from the Registrar telling you the matter is outside their jurisdiction.

Jt Oakley left an annotation ()

Thank you J Roberts,

I think I must just be satisfied that there is nothing to be done.

The ICO can continue to stack up vexes in my requests.

Even though this one is based on an unjust legal ‘hole’ in the system.

==

I must say though, having made a PHSO Complaint , ( which led to a successful overturning of a bizarre decision and apology) the ICO is a lot less helpful in refusing to review the way in which the strange decision LR was made.

===

It is one of only two vex decisions in which I thought the ICO had made an outrageously bad call.

The first vex I took to court and won ....and this is the second.

PAYBACK?

Personally, as been stated before - by someone else, seemingly this one was payback...For winning the first, as the circumstances were almost identical.

+ Taking the PA’s ‘word’ so EASILY again ( duplication of the first case) against all logic.

Since then I had another FOIA request in the resignation of the Ombudsman vexed (fought and now rescinded) - as ‘frivolous’ on a national MSM reported issue.

I’m not paranoid by nature - but it seems to me if you win in court against the ICO on a S14 (vex) issue in court, you can expect nothing but vexing on some very flimsy reasoning .....on practically any FOIA request you make in the future.

It’s very wearying.

Information Commissioner’s Office

21 November 2017

 

Case Reference Number ENQ0712291

 

Dear Ms [first name redacted] Oakley

Thank you for your email passed to us by our Information Access team.
 
With regard to your question regarding approaching the public authority
(PA) our advice is that you should approach the PA in the first instance.
Then, if you are unhappy with the response received, complain to the
Information Commissioner’s Office (ICO). In turn, if you disagreed with
that decision, you would have a right of appeal to the Tribunal.
 
If you are seeking to reopen issues which have already been the subject of
a complaint to the ICO and an appeal to the Tribunal, it will be necessary
for you to present compelling and objective new evidence which was not
presented when the matter was originally decided.
 
We are not able to provide legal advice on any remedies there may be
against the public authority for wasting your time. We would therefore
recommend you seek independent legal advice on any other such remedies
which may or may not be available to you before you contemplate legal
action.
 
I hope this information is helpful to you. If you would like to discuss
this case further, please contact me on my direct number 0330 414 6360.
If you need advice on a new issue you can contact us via our Helpline on
0303 123 1113 or through our [1]live chat service. In addition, more
information about the Information Commissioner’s Office and the
legislation we oversee is available on our website at [2]www.ico.org.uk.
 
Yours sincerely
 
 
Sharon Boot
Lead Case Officer
Information Commissioner’s Office
 
 

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Dear Information Commissioner’s Office,s

Thank you for your email passed to us by our Information Access team..

With regard to your question regarding approaching the public authority
(PA) our advice is that you should approach the PA in the first instance.
Then, if you are unhappy with the response received, complain to the
Information Commissioner’s Office (ICO). In turn, if you disagreed with
that decision, you would have a right of appeal to the Tribunal.

* Thank you but the ICO has stated that I must not as I am apparently ‘frivolous’ to have asked for the information that knew existed (as advised by a lawyer).

***************Are you now stating that I can go back to square one and approach this Public Authority?

===

If you are seeking to reopen issues which have already been subject of a complaint to the ICO and an appeal to the Tribunal, it will be necessary for you to present compelling and objective new evidence which was not presented when the matter was originally decided.

* Suggest you read the link. There could not be a referral to the Tribunal, as the ICO stated I was frivolous and so could not carry on with the complaint.

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

===

The request : ...read the NB.

The reason

Scope: Land Registry file boundaries - The LR processing of any boundary file changes
I am puzzled in that a boundary on a Land a Registry file has been changed, yet there is no record of why the change was made on the LR file.
It cannot have been accomplished by Act of God. There must be some official reasoning for it.
* NB This request is not about an individual case, it is solely concerned with process.

===

FYI =

My complaint was that the Land Registry had not provided information that I knew to be on file.

As it was, the Land Registry finally provided it ( see above) -via my private address to dodge a WDTK response.

The ICO states that my request was 'frivolous' -also ignoring the DPA Complaint if putting my private files on the WDTK request, and that I was right to continue to chase data that existed - but was being withheld.

Apparently I am wrong and 'frivolous' for reoorting DPa breaches...

1. about complainng that my personal information was disclosed on the internet in response to a procedural request ( DPAct). In this request TWICE.

So presumably the ICO does not enforce the DPA law any longer:

Dear Sondh, Gurmale,
Your reply infringes the Data Protection Act.
Please remove it immediately and respond to a FOIA
Yours sincerely,
Jt Oakley

* It was removed

==

Also February 15

Dear Petty, Roger,
This is an FOIA request. Please remove your reply.
Please stop putting personal data from an Internet site.
You cannot use this request to identify me or any other people involved in my personal situation.
Yours sincerely,
Jt Oakley

* That was also removed.

===

The Data Protection Act 1998

What does the law say?
Under section 42 of the DPA, any person who is, or believes that he is, directly affected by the processing of personal data, can ask the Information Commissioner to consider whether the processing is likely to comply with the law.
On receiving such a request, the Commissioner is obliged to consider the concern and make an assessment. The Commissioner can do this in whichever way he or she believes is most appropriate. The Commissioner will usually share the view formed and any action taken as a result.

2. And that the Land Registry withheld the requested information.
The ICO also seemingly no longer upholds the Freedom of Information Act 2000:

The Act creates a general right of access, on request, to information held by public authorities. On receipt of a freedom of information claim a public authority has two corresponding duties.

First, a duty to inform a member of the public whether or not it holds the information requested (s1(1)(a)), and second if it does hold that information, to communicate it to the person making that request (s1(1)(b)).

As the corollary to this, the Act thus grants the equivalent rights to a confirmation or denial and communication of relevant information to an individual making a request under the act.

The basic duty is supplemented by an additional duty to aid individuals in making requests and ensuring that they frame their FOI requests appropriately. (s.16(1))

With the consequence of my complaint about the breaking of the two Acts being being declared frivolous ...

ICO :

Turning specifically to your current complaint, I am writing to advise you that we are dismissing your complaint as frivolous, under section 50(2)(c) for the following reasons.

It appears that your information request to Land Registry and subsequent complaint to this office directly relates to previous requests you have made to Land Registry and complaints you have made to the Information Commissioner’s Office. These relate to the boundary at your address.

* Untrue - it’s about process, not a personal complaint.
* That’s why the request doesn’t refer to one.
* And states so.
===.

You have pursued information requests with the Land Registry and complaints with the Commissioner where, even if the request *appears* to be related to a general issue, there is invariably some connection to the boundary issue at your address.

*appears*.?
No explanation of this *appearance* .
How does the ICO what my own personal circumstances are? Only the Land Registry could of divulged any past private matters it assumed were relevant.

To add to the confusion, the LR unbelievably got the wrong property! Which I pointed out...to no avail.

==.

The Commissioner is satisfied that *although you state that your current request is not about a specific piece of land* ,

* If I’d wanted to ask about a specific piece of land I wouldn’t have asked about process. I’m sufficiently aware of the FOIA not to. That comes under my SAR .

many of your previous dealings with Land Registry, which the Commissioner has taken into account,

* Dealings when the Land Registry told me it WASN’T subject to FOIA? That took ages to sort out.

stem from concerns you have about your belief that your boundary has been moved and it is her position

* Whose position? - Doesn’t make sense

that this request does indeed stem from that same issue and is inextricably linked to it.

* A process which affects hundreds of thousands of boundary changes every year is only ‘inextricably linked to MY boundary’? And no other?
* So where did the ICO get this past FOIA file personal information from?
* Has the Land Registry been divulging past cases and personal information yet again? Seemingly it has.

==

It is the Commissioner’s position that Land Registry should have considered the impact and burden of your correspondence at an earlier stage and should have considered the application of section 14 or Regulation 12(4)(b). However, she understands and accepts that in responding to your requests, Land Registry has been trying to be helpful.

* helpful enough to delay the response to march 2.
* It starts

This is the information requested, everything Eisenhower’s from the Land Registry was designed not to give it to me.

* Publishing my personal information on WDTK
* Denying boundary processes existed.
* Bringing in my past correspondence asking WHY the Land Registry was not subject to FOIA, as informed
* Sending information to my personal address, rather than replying on. WDTK
* And sending the information requested to my personal address.

This is the requested (long );processing entry on the request:

March 2

The LR process response was eventually sent to my private taddress:

List of acronyms used:

LRA 1925 and 2002= Land Registration Acts
LRR 2003 = Land Registration Rules .....

The Commissioner notes that in annotations made on ‘What do they know’ (WDTK) relating to this specific request, you point out that Land Registry was involved in a previous pay out to you.

Nb Annotations do not form part of request. It would be the same if I was discussing the request in any public place.
The public are allowed to discuss FOIA points on WDTK. The site also acts as a discussion point to matters relevant to the FOIA and sometimes background information is relevant to other requesters, especially as, in this case, those who follow the Land Registry FOIA requests ... with the same lack of response.

* It impacted on my request as lawyers answered the request by putting my personal files on WDTK.
The FOIA process , a request for data, was not followed.

You suggest that this has had an impact on how Land Registry handles your request; your suggestion that requests are refused because Land Registry fears “some kind of imaginary law suit” effectively alleges that because of your previous dealings, Land Registry does not now comply with the FOIA in respect of your particular requests.

* Its logical to think that when a lawyer writes to you on the ing annotations Internet about your personal land holdings and avoids providing the requested FOIA data that it’s assumed to be a legal issue.

The Commissioner considers that the annotations made by you on WDTK and the view you have set out could be considered inflammatory and could be considered campaign-like in nature.

* I am not a member if any campaigning group and any member of the public can watch Land Registry responses on WDTK and make their own annotations. ...For which I am not responsible. British citizens are allowed to state their own opinions.
* As the Land Registry had neglected to respond to the process request in a timely and efficient way the fault lay with the Land Registry.
* As a Balance ..what is worse?. Breaking the DPA and putting private data on the internet, or making annotations reminding uothe lr that it has broken the law twice? Are requesters allowed hsto be annoyed by the Land Registry displaying not only their personal information, but that of other people too?

In your requests and further correspondence on WDTK, you set out to Land Registry that “it is your choice whether or not to comply with the * ACT”; the Commissioner considers this to support the view that there is no serious intent behind your ‘request’ but rather that WDTK serves as a vehicle to publicly air your grievances about Land Registry

* That is a statement of fact. It is the Land Registry’s choice to whether or not to,comply with the Act. It was a serious breach of the Act, to deny the information existed ( confirm or deny) which the ICO should of picked up.
* It did not do so...the LR then later provided the missing data.

and to question its integrity and ability to Act within the confines of the FOIA in respect of your requests, suggesting that Land Registry may perceive compliance with the Act to be optional.

* It clearly did. Once for telling me it was not subject to FOIA ...then denying data existed when it was on its files..or it could not have later produced it.

Although you have set out in this request that you are asking for recorded information, I note that you then ask:

“How can land existing – but ‘vanished’ from LR mapping – be described when enquiring of the LR why it doesn’t exist in LR mapping…. As – despite enquiring I have been unable to gain a reply from the LR?

* Thus I formally had to ask what the process was .....since the LR would not answer me on the point.

It is the Commissioner’s view that a question such as this does not constitute a request for recorded information but serves only as a public criticism of Land Registry’s handling of your previous correspondence.

* If the Land Registry would not send me the process,what choice did I have BUT to make it an FOIA?

Your second question then sets out that your previous correspondence is reasonable but that you have had no reply so you have had to ask if Land Registry has discontinued its policy of returning letters with a compliments slip “without answering them (which was the policy strategy used to cover up a LR mistake…. And for which the LR eventually had to pay out a four figure sum.” This again demonstrates that your correspondence has little serious intent other than to publicly vent your frustration with Land Registry.

* I won the case. Why would I be frustrated?
* It is the Land Registry that feared that it would have to pay out to me yet again.
* Which presumably is why it withheld the data.
* And that was why it wouldn’t provide the process info via FOIA.
* If it had been found out that there was indeed a process, ( as there was) the Land Registry would then have been shown to have broken the FOIA.
* And since I was on the brink of getting it from another source, the Land Registry then sent it to me.

*NB I subsequently found out that - once I had the withheld Data - that the LR was not following its own process.

It is the Commissioner’s view that this represents a further example of a ‘question’ which sets out your position that you are reasonable and that Land Registry does not handle your correspondence effectively (or in a way which you find acceptable). It is not a request for recorded information as even the question which relates to ‘policy’ requires a yes or no answer rather than the provision of recorded information.

* The LR failed to reply ( as can be seen) by the due dates.
* As the LR wouldn’t provide data that I knew it had on file and FAILED to state whether it existed or not, and didn’t give Section 16 help and assistance....(not picked up by the ICO)it didn’t give me a lot of choice BUT to try and find out why.

Your additional questions, which I will not detail here, also set out what is essentially your position regarding your experience with Land Registry. These do not constitute requests for recorded information.

* What questions? They need to be detailed in a ‘ vexatious’ response.
It is sloppy to state I am being held accountable for mystery ‘questions’
.
+ My ‘position’ all along was is that the Land Registry would not respond to me on anything to do with this processing data

The Freedom of Information Act was designed to give individuals a greater right of access to official information with the intention of making public bodies more transparent and accountable. It is not intended to be used as a vehicle for individuals to pursue their own personal agenda or vendetta against a particular public authority.

* What vendetta? Twenty one years ago, I won a handsome compensation from the Land Registry .
* For knowing the legal rules on a boundary and the boundary of land that I owned.
* An apology was also made to me - by the Land Registry.

* It is that the data requested on ANY boundary processing in which I was interested.
* Individual cases would be of no assistance - as they are all different.
* What I didn’t know is what the internal LR boundary change process was.
* In a publically-funded supposedly transparent organisation.

* If anyone was ‘ pursuing a vendetta’ ....it was not me.

The Commissioner will not now consider any further complaints from you which stem from this same topic as it will not be an effective use of limited resources and could impact on the reputation of the ICO. As such I can confirm that this complaint case is now closed.

* So even if the Land Registry eventually sent me the denied requested data, and I was proved right.. it did exist..the ICO have ‘closed the case’ and can -or will not - do anything about it.

* Public Authorities ....that’s a great strategy to avoid complying with the FOIA.

::::::

Conclusion:

So, according to the ICO, I am the guilty ‘frivolous vexatious’ party....

1. As the the Land Registry mishandled my boundary complaint so badly 21 years ago ...that it had to pay me compensation.
So I must be pursuing a vendetta?

2. For complaining to the ICO that the Land Registry's legal department put my personal files ( and those of others ) on the internet - as an FOIA a response to this request.

3. Complaining to the ICO that I knew the data existed ...and that the Land Registry should provide it.

4. Pointing out to the ICO caseworker that the Land Registry had sent the data to my personal address - to avoid putting it on WDTK -where I had now put it for everyone to see.
So it did in fact exist.

5 There were two breaches of The Acts (FOIA and DPA) in my complaint yet apparently it is to carry out a 'personal vendetta' to report them.

We are not able to provide legal advice on any remedies there may be against the public authority for wasting your time. We would therefore recommend you seek independent legal advice on any other such remedies which may or may not be available to you before you contemplate legal
action.

* As stated, I have already received the requested information.
Seemingly there is no way to put this right.

And I remain ‘frivolous’ and ‘vexatious’ for pursuing the information that I knew was being withheld ....and was on file.

Yours faithfully,

Jt Oakley

AccessICOinformation, Information Commissioner’s Office

Thank you for contacting the Information Commissioner’s Office. We confirm
that we have received your correspondence.

 

If you have made a request for information held by the ICO we will contact
you as soon as possible if we need any further information to enable us to
answer your request. If we don't need any further information we will
respond to you within our published, and statutory, service levels. For
more information please visit [1]http://ico.org.uk/about_us/how_we_comply

 

If you have raised a new information rights concern - we aim to send you
an initial response and case reference number within 30 days.

 

If you are concerned about the way an organisation is handling your
personal information, we will not usually look into it unless you have
raised it with the organisation first. For more information please see our
webpage ‘raising a concern with an organisation’ (go to our homepage and
follow the link ‘for the public’). You can also call the number below.

 

If you have requested advice - we aim to respond within 14 days.

 

If your correspondence relates to an existing case - we will add it to
your case and consider it on allocation to a case officer.

 

Copied correspondence - we do not respond to correspondence that has been
copied to us.

 

For more information about our services, please see our webpage ‘Service
standards and what to expect' (go to our homepage and follow the links for
‘Report a concern’ and ‘Service standards and what to expect'). You can
also call the number below.

 

If there is anything you would like to discuss with us, please call our
helpline on 0303 123 1113.

 

Yours sincerely

 

The Information Commissioner’s Office

 

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Jt Oakley left an annotation ()

Dear JtOakley

The Commissioner’s decision notice was very clear that the history and context of your information request provided strong grounds and support for the application of Regulation 12(4)(b).

Paragraph 63 noted that: ‘The Commissioner is satisfied that this is the case here, where the complainant is placing a significant strain on the Registry’s resources by submitting a long and frequent series of requests and other correspondence, and the request of 13 January 2016, in its unrefined state, is contributing to this aggravated burden’. Paragraph 69 also stated that, ‘The Commissioner considers that the complainant’s requests have by some way passed the point where it would become unreasonable for the Registry to continue to respond to them’.

No ‘new evidence’ - even the production of withheld requested data - will right the ICO record.

The Commissioner’s rationale for finding that the Registry was correct to refuse your request under Regulation 12(4)(b) was therefore not dependent on or affected by any new information which you believe to be relevant.

The Commissioner’s decision notice is her final position in this matter and please note that should you attempt to engage the Commissioner in further correspondence concerning this decision (which was issued more than 8 months ago) any such correspondence will be logged but not responded to.

Kind regards

J Roberts left an annotation ()

........................................................................................................................................
"With regard to your question regarding approaching the public authority (PA) our advice is that you should approach the PA in the first instance. Then, if you are unhappy with the response received, complain to the Information Commissioner’s Office (ICO). In turn, if you disagreed with that decision, you would have a right of appeal to the Tribunal.
 
If you are seeking to reopen issues which have already been the subject of a complaint to the ICO and an appeal to the Tribunal, it will be necessary for you to present compelling and objective new evidence which was not presented when the matter was originally decided."
.........................................................................................................................................

My understanding is that a PA is not required to respond to an FOI request from someone already vexed - section 17(6) applies. If a person receives no response they can complain to the ICO, but the ICO on discovering that section 17(6) applies is then likely to write to the complainant telling them that the PA is not obliged to respond. The end.

If anyone has any better understanding, or sees something wrong in my reasoning, please let me know. I'm also not sure of the formal mechanism that allows 'objective and compelling' evidence in a wrongly vexed case to be considered. Perhaps the ICO keep stats on vexed cases that have been overturned using the procedure described by Ms Boot?

I skim read your complaint to the Land Registry. Very scary:

"This notice requires you to do one of the following:
(a) Object to the application, or
(b) Consent to it
before 12 noon on 18 November 2014.
If you consent, OR IF WE DO NOT RECEIVE YOUR RESPONSE TO THIS NOTICE, before the deadline then WE MAY COMPLETE THE APPLICATION." (my capitalization)

From the ICO response:

"It appears that your information request to Land Registry and subsequent complaint to this office directly relates to previous requests you have made to Land Registry and complaints you have made to the Information Commissioner’s Office. These relate to the boundary at your address."

The use of the word 'relate' in the second sentence is very misleading. Your query may have been prompted by your personal circumstances, but your personal circumstances are irrelevant to the request. If someone, for example, was attacked and beaten, it would be wrong to dismiss their FOI request to the appropriate compensation authority because they themselves were attacked and beaten. They may have lost an eye and wish to know the level of compensation awarded for lost eyes?

Jt Oakley left an annotation ()

Thank you J Roberts.

I’m just astounded by the ICO’s inability to put this right.

Presumably no one who drafted the ICO’s regulations could encompass anything of this sort happening.

And thought that all Public Authorities would respond with the information requested and not treat an FOIA request as a legal challenge.

==

What really worried me was that it was the Land Registry immediately assumed that I must have applying the request to only one property. That’s why I was at pains to state that I wasn't..(repeat, repeat, repeat).

Despite that, the ICO investigator decided that I was lying....After she mixed up two properties at one point.
(Apparently she knew better than me as to how many properties I owned) .

Nb Practically ALL my family is in property, one way or another.
I had to learn property law on in the LR error in the first property, so my interest was awakened again when a similar scenario occurred.

Because the error then seemed to be systemic - rather than a one off mistake.

So I wanted to know which...which led to asking for the process.

This was external to the actual legal process, which I won. (The two channels have nothing in common),

Explained this ( this must have been the comments to the investigator omitted) but the investigator would NOT believe me.
Just took the ‘word’ of the Land Registry.

Which is a ironic, since my properties are logged to my ownership in LR files.

We don't know whether the most recent response to this request contains information or not – if you are Jt Oakley please sign in and let everyone know.

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