Dear Oldham Metropolitan Borough Council,

Please disclose, by way of the Freedom of Information Act, 2000, a pdf copy of the electronic hearing bundle filed and served in the above appeal and in which Oldham MBC were second respondent.

Yours faithfully,

Neil Wilby

Dear Information Manager,

Thank you for the prompt acknowledgement, I'm grateful.

Yours sincerely,

Neil Wilby

Dear Oldham Metropolitan Borough Council (OMBC),

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

I am writing to request an internal review of Oldham Metropolitan Borough Council's handling of my FOI request 'First Tier Tribunal (Information Rights) EA/2021/0106'.

Firstly, thank you for the prompt response.

Secondly, it may assist your Council (and What Do They Know readers and users) to know that I have been involved in five appeals to the General Regulatory Chamber - First Tier Tribunal (Information Rights) to give it its full title. Often shortened to FTT. Three were decided at hearings, at one I succeeded, in two the appeals were not upheld (one later appealed to the Upper Tier Tribunal (UTT)). The other two were decided on the papers as the matters had become stale.

Furthermore, I have been adjacent to a large number of other FTT and UTT appeals, and hearings, in the course of my duties as a journalist. It can, therefore, be taken as read that I am very familiar with Tribunal Procedure Rules (TPR) and how and when, mostly formulaic, Case Management Directions are given to the parties by the Registrar. Particularly, in relation to preparation, filing and service of the hearing bundle. Invariably, the responsibility of the Information Commissioner's Office when the appellant is a lay litigant (as is the case here).

In the instant appeal, over which materials are sought to be disclosed, a well known, indeed notorious, political activist, Raja Miah, was appellant, the Information Commissioner was the First Respondent and OMBC the Second Respondent. That much is very clear from Judge Cragg QC's opening remarks at the CVP remote hearing, at which I was present and made the usual reporter's notes.

It is trite that in any court proceedings an elemental part of the route to trial or final hearing is correct filing of documents with the court and the service upon non-filing parties. The FTT is no different in this regard. Indeed, in my extensive experience the FTT Registrar could be fairly described as a procedural tyrant.

It would, therefore, strike a neutral observer that it is most unlikely that a dispensation would be given in the subject appeal for the Information's Commissioner's Office not to serve a hearing bundle on its fellow respondent, OMBC.

Moreover, in a matter that would have, and, indeed, already has, far reaching consequences, that OMBC were so detached from it that they did not even receive a trial bundle, even for no other purpose then checking that everything was in order from their side, ahead of a hearing at which they would not be present, would strike an independent observer as highly questionable..

It is public knowledge that the Council elected not to be represented at the hearing. But, as the judge explained to the others present at the hearing, not too much should be read into that. The application of resources to these type of hearings is a commercial decision for public authorities to take and not at all unusual. What is out of the ordinary, if the Council's response to this information request is to be taken at face value, is the apparently studious disinterest in the final stages of tribunal proceedings.

In sharp contrast to the Council's apparent laissez faire approach, and for his part, Mr Miah has described, with familiar hyperbole it has to be said, the upholding of the appeal by the Tribunal as 'a victory over tyranny' and one that 'will be talked about for years to come'. His supporters, a vociferous group self-styled as 'The Rabble', are calling for a marble, bronze - or even solid gold - statue of him to be erected in a prominent location in Oldham to mark this and other claimed successes in holding your Council to account.

I will, of course, be asking both the Information Commissioner's Office and the General Regulatory Chamber relevant questions regarding the Case Management Directions and, in particular, relating to service of documents on the two respondents. That is a function of my vocation as an investigative journalist and no imputation of any wrongdoing at all, by any officer, or Member, of OMBC is asserted or remotely implied by the making of such routine enquiries. Genuine mistakes and/or misunderstandings can take place in large organisations. That is a fact of life and much the most likely scenario here.

Accordingly, this internal review request is focused on the single issue of whether renewed searches for the hearing bundle, within the relevant business area, would bring about a different outcome. A new, collateral access request is also made, to run alongside this review, for copies of all the Case Management Directions served on OMBC in the subject appeal (EA/2021/0106) together with the skeleton argument of Mr Miah, filed and served in the appeal, which, from the remarks made by Judge Cragg QC during the hearing, may have been produced after the hearing bundle was filed and served.

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

Yours faithfully,

Neil Wilby

Dear Information Manager,

Thank you for the prompt and careful attention to the further request for disclosure. I'm grateful.

Yours sincerely,

Neil Wilby

Dear Oldham Metropolitan Borough Council (OMBC),

I am writing to request an internal review of Oldham Metropolitan Borough Council's handling of my FOI request 'First Tier Tribunal (Information Rights) EA/2021/0106'.

Background (for the benefit, mainly, of What Do They Know readers and users).

There is a short but troubled history between this applicant and OMBC. It is been proved that there are mistakes, inconsistencies and, on occasions, falsehoods, in responses provided by the Council to information requests. The disposition, generally, appears to be not to disclose whereas the fundamental principle underpinning the Freedom of Information Act is the presumption for disclosure.

Two requests in particular bear this out and are both referenced in this article published on my website:

https://neilwilby.com/2021/08/19/council...

The instant request has, so far, spawned this further article. It will be updated as this request grinds towards its conclusion:

https://neilwilby.com/2021/10/31/council...

Taken together they form an unattractive matrix. It is also a fact that public confidence in the council to deal with information access requests lawfully, or with the requisite diligence or application, is fast decreasing. Not at all assisted by the defeat at Tribunal on 11th October, 2021 by a local political activist from neighbouring Tameside, Raja Miah. A case one might very well argue of snatching defeat from the jaws of victory and the subject matter of this access request, as it so happens.:

The complaints

The grounds for complaint in the instant request are directly related to that background set out above, informed as they are by a well founded suspicion that the presumption by the Council is not to disclose any information to this particular journalist, except as a last resort. In fairness, to OMBC they are far from alone in that ambition:

1. My genuinely held belief is that OMBC does hold at least some of the information I requested. For the following reasons:

(i) When an appeal is filed with the General Regulatory Chamber (First Tier Tribunal) - or FTT to give it the familiar acronym - it is a very specific requirement that an appellant files it at the FTT and serves on (a) The Information Commissioner's Office, whose Decision Notice is the subject of the appeal, as 'first respondent' (b) the public authority to whom the request was made, in the first instance, as 'second respondent'.

(ii) Case management directions are then issued to both respondents. It is accepted in this case that OMBC may have indicted that, by consent or otherwise, they had no wish to engage further with the appeal. But, even in that event, which the independent observer might consider bizarre in the particular circumstances of this particular, highly significant, appeal, the FTT would have issued an Order and or Directions to that effect, releasing the other two parties, Mr Miah and the ICO, from the obligation of serving any further documents on the second respondent.

(iii) When asked, by this applicant, who made the decision not to engage counsel to represent OMBC in the Tribunal hearing of the Miah appeal, the answer was given, by an unnamed officer in the Council's Legal Services Department as 'the Deputy Chief Executive'. Which is, of course, at odds with the latest response to this information access request in which OMBC state that 'the Council was not a party to the Tribunal'. It was also an answer with which I was, instinctively, uncomfortable and has, not unnaturally, spawned other journalistic enquiries elsewhere.

2. With regard to Mr Miah's skeleton argument, may I first offer this clarification. In civil or tribunal proceedings pleadings are filed with the court, served on the parties. This is a point that a Council's Legal Department really ought to know. It is assumed that in providing the response they are the relevant business area from which the answer 'As the Council was not a party to the tribunal, case management directions
or Mr Miah’s skeleton argument were not *filed or served* on the Council was given [emphasis added] . But the core point here is that it would seem, from this quarter at least, utterly extraordinary that the lawyer at the ICO dealing with the appeal did not consult with OMBC on the content of that skeleton argument, particularly as its central (and new) argument appeared to be that the Council had refused Mr Miah's because of racial discrimination.

https://neilwilby.com/2021/11/11/tribuna...

3. Suspicion is heightened that all is not well with the overall handling of this matter, by the parties to the appeal, when one considers that the ICO, the information rights statutory regulator, no less, is prepared to break the law to avoid answering questions and disclosing information about it. Extraordinary, by any measure one might very fairly observe. For the benefit of fellow What Do They Know users and readers this is a link to that request. The damage to public confidence flowing from that 'cover-up' is incalculable.

4. It is also clear that there is little or no quality assurance, or appropriate senior management oversight, of information requests, particularly those that may impact on the good standing of the council.

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

Concluding remarks

It is clear, viewed through the lens of this journalist at least, that the conduct of the Council, and the relevant senior paid officers, in dealing with requests under the Freedom of Information Act, should be the subject of an urgent and independent review. The Borough's taxpayers, and those journalists fulfilling their 'social watchdog' , have an inalienable right to expect that the Council will not only comply assiduously with Parliament's wishes, they will act, at all times, competently, ethically and professionally.

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

Yours faithfully,

Neil Wilby
Investigative journalist

Twitter: @Neil_Wilby

Web: neilwilby.com

Dear Oldham Metropolitan Borough Council (OMBC),

Below is a weblink to the Information Commissioner's Office (ICO) Guidance on Section 45 of the Freedom of Information Act, 2000 (FOIA) which is, in essence, a Code of Practice.

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

For the benefit of fellow What Do They Know users and readers, and all those at OMBC involved in finalising FOIA requests, I will go through the relevant parts of the Guidance step by step and with appropriate commentary.

Part 78 of the Code states: 'A public authority should establish complaint handling procedures with set target times for resolution. These procedures should be publicised and covered in the public authority's publication scheme'. and Part 79 goes on to say: 'Complaints handling procedures should be clear and easy to follow. Any complaint received should be acknowledged promptly with timescales given for resolving the issue'.

OMBC ignored both of those parts in their acknowledgement of the instant internal review request (IRR). They said they would respond 'in due course'. Past experience with this Council shows that a period of 3 months can elapse before they respond to an IRR. They are yet to respond to a single one within recommended timescales.

Part 82 of the Code states: 'Paragraphs 39 to 41 cover the internal review process and stress the importance of keeping the applicant informed at all stages on: (i) the progress of the complaint; and
(ii) the likely timescale for completion.

OMBC habitually do neither. That is also, plainly, the case in the instant complaint.

Part 84 of the Code states:' In any event an internal review should take no longer than 20 working days in most cases, or 40 in exceptional circumstances'.

There are no exceptional circumstances in issue here. Indeed, the IRR couldn't be framed in more simple terms. But it is my respectful submission that OMBC has no intention of complying with the Code in this or any other information access request made to them. It is an organisational culture issue that cascades down from the very top of OMBC.

Parts 87 and 88 of the Code state: 'A public authority should maintain records of complaints including details of the outcome and the timescales involved and should review these records and its complaints handling procedures on a regular basis so that any weaknesses can be identified and improvements made where necessary. In cases where the authority has not followed the correct procedures, it is good practice to make a formal apology to the applicant and take remedial measures to ensure that this does not re-occur'.

Whilst I cannot speak of OMBC's record-keeping, without a further FOIA request, what I can say with absolute certainty is that complaints are not reviewed, effectively, and the weaknesses recur and incorrect procedures almost invariably, and inevitably, entail.

Parts 89 to 91 state:
'Adhering to the code should result in positive benefits for an authority, and will help it to provide good customer service.
'Benefits include:
• reduced likelihood of breaching the FOIA;
• increased customer satisfaction;
• improved public perception of an organisation;
• quicker turnaround of FOIA requests;
• more streamlined procedures;
• a saving of staff time; and
• potentially less resource spent on dealing with complaints to the ICO'.
'These benefits are interlinked, and a public authority will obtain most benefit by adhering to all aspects of the code'.

It is necessary when considering these aspects to return to the poor organisational culture which includes low attention to, and/or lack of concern with customer service. It also involved public funds being frittered away needlessly in times of austerity.

Of greater public interest is the proposition that if this is how OMBC operate in plain sight, and in dealing with an investigative journalist, what happens (or doesn't happen) behind closed doors.

At this stage of the process I would be entitled to make a complaint to the ICO by way of section 50 of FOIA. In the circumstances and in the hope that OMBC will draw valuable learning from all that is set out above, such action will be deferred until the New Year.

In the meantime, I will again be drawing the continued failings of OMBC's Legal Services Department to the attention of the Council Leader and the interim chief executive.

Yours faithfully,

Neil Wilby