Dear Information Commissioner's Office,

The ICO often regards section 42 of the FOIA as a near absolute exemption in practice - extreme exceptionality. This practice is not in accordance with the law. Some ICO case workers regard section 42 as a near absolute exemption in practice and some regard it as a fully qualified exemption in practice. In order to ascertain whether there is a pattern of practice in non-adherence to the law please provide an anonymised identifier for each caseworker for the following decision notices:

FS 508 56 403 20 December 2019

FS 508 07 165 6 September 2019

FS 507 94 284 7 July 2019

FS 508 21 780 1 July 2019

FS 507 89 890 17 January 2019

FS 507 88 785 14 January 2019

FS 507 45 784 1 October 2018

Yours faithfully,

M Boyce

Dear Information Commissioner's Office,

Could you please confirm that you have received my FOI request?

Thank you

Yours faithfully,

M Boyce

Information Access Inbox, 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]https://ico.org.uk/about-the-ico/our-inf...

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
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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.

For information about what we do with personal data see our [2]privacy
notice.

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 ()

Latest s.42(1) appeal dismissed by the FTT. The Appellant is a Law Professor, and Vice –President of the Chartered Institute of Journalists, and Chair of that Institute’s Professional Practices Board:

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

Decision Notice:

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

The decision was delayed because the Tribunal was awaiting the outcome of a case in the UT – Moss v Information Commissioner:

“8. The Tribunal apologises for the delay in promulgation, occasioned, initially, in part by a desire to await any imminent Decision of the Upper Tribunal in Moss v Information Commissioner,which turned out not to be imminent, also by pressure of judicial business, and more latterly, by the restrictions occasioned by the Covid –19 emergency which has limited access to judicial premises and resources.”

FTT decisions I found relating to Moss:

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

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

Key letter not seen by Appellant:

"77. The Tribunal is not satisfied in these circumstances that this letter was indeed ever (until the ICO investigation or the preparation of the bundle) seen by the Appellant, and will discount it for the purposes of its Decision."

ECtHR judgment:

"91. In other words,to use the Appellant’s language, the Article 10 right, interpreted at its highest on the basis of the decision in Magyar does not “trump” the public interest in maintaining LPP, itself a fundamental right under both the ECHR and a common law."

Case in which PIT displaced LPP exemption:

"94. It is perhaps instructive to consider the one cited instance of the LPP exemption being displaced on the public interest test. That is the FTT Decision in MerseyTunnel Users Association v Information Commissioner and Mersey travel (EA/2007/0052)."

M Boyce left an annotation ()

Thanks for this J Roberts.

It is interesting that the ICO's decision notice in the recent Tribunal decision does NOT state that disclosure of legal advice can only occur in 'very exceptional cases/circumstances'. In fact it states quite the opposite: very exceptional circumstances are not required for disclosure. In this regard the above ICO DN is in accordance with law, unlike my DN and other DN's listed above, which, because disclosure is predicated on extreme exceptionality, are not in accordance with the law.

J Roberts left an annotation ()

Yes, no mention of 'very exceptional cases/circumstances'. Instead:

“86. ...the Tribunal is mindful of the substantial weight that the authorities referred to by all parties have held should be applied to the exemption of material covered by LPP..."

The Decision includes some useful information on how the case differed from the important FTT decision, Mersey Tunnel Users Association v Information Commissioner and Mersey travel(EA/2007/0052):

"95. ...Not least of these is the context in which the advice was provided, and how central it was to the public authority’s position...

96. ...

97. ... the decision had already been taken, without the benefit of obtaining it first..."

Dear Information Commissioner's Office,

A response to this FOI request is now overdue. I would like to remind you that by law you are obliged to respond within 20 working days. I appreciate that things are difficult at the moment, but that does not give you carte blanche to ignore the law and your duties under it.

My request is a relatively straightforward one and should not prove to be particularly onerous.

Yours faithfully,

M Boyce

Dear Information Commissioner's Office,

If you don't respond in any way shape or form I will be forced to request an internal review. If this is also ignored I will then immediately refer the matter to the First-tier Tribunal. This is not what I want to do but I will be left with no choice.

Yours faithfully,

M Boyce

J Roberts left an annotation ()

Just a quick thought on the word 'exceptional'. The context is different (a criminal wanting a ligher sentence), but the judge spells out what the word means:

'This is a high threshold. The phrase "exceptional progress" means what it says. Progress which is "very good" or even "excellent" will not necessarily meet the test of "exceptional progress".'

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

M Boyce left an annotation ()

Yes and 'very exceptional' is an order of magnitude greater than 'exceptional'. It would be exceptional to win the UK lottery jackpot, but it would be very exceptional to win the EU lottery jackpot. The ICO state, against the law, that only in very exceptional cases/circumstances (EU jackpot )CAN (not should) legal advice be released under section 42 FOIA. Parliament never legislated for that and it clearly never meant that - as successive Tribunals have stated.

Dear Information Commissioner's Office,

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

I am writing to request an internal review of Information Commissioner's Office's handling of my FOI request 'ICO contravention of section 42 of the FOIA'.

It is now clear that you are not going to respond. A request for an internal review is required before I take the case to the First-tier Tribunal. If I get no response within 20 working days then I will immediately take the case to the FTT.

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

Yours faithfully,

M Boyce

Information Access Inbox, 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]https://ico.org.uk/about-the-ico/our-inf...

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.

For information about what we do with personal data see our [2]privacy
notice.

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

Our newsletter

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[3]here.

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ICO Casework, Information Commissioner's Office

20 May 2020

Our reference: IC-40491-V6R3 

Dear M Boyce,

Thank you for your initial email of 9 April 2020 and subsequent emails.
These contained a request for information and was passed to the ICO’s
information access team. I sincerely apologise for the delay in responding
to your correspondence.

As you will be aware, under statutory timeframes our response to your
request was due by 13 May 2020. However, due to the pandemic period it has
not been possible to respond to your information request on time. We
apologise for this but during this pandemic period, we have put
arrangements in place to protect our staff and others from the potential
spread of Coronavirus (COVID -19).

I can confirm that I am currently working on your request and will respond
as soon as practically possible.

Next steps

If you wish to raise a complaint about the time we have taken to respond
to your information request, this can be sent to this office as the
statutory complaint handler. Please refer to our website at:
[1]https://ico.org.uk/make-a-complaint/

Please note that when considering complaints, we will take into account
any extraordinary circumstances which mean resources have been diverted. 

Our privacy notice explains what we do with the personal data you provide
to us and what your rights are, with a specific entry, for example, for an
information requester. Our retention policy can be found here.

Thank you for your interest in the work of the Information Commissioner's
Office.

Yours sincerely,

Alexis Karlsson-Jones  
Lead Information Access Officer
Information Commissioner’s Office 

Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF
T. 0303 123 1113 [2]ico.org.uk [3]twitter.com/iconews
Please consider the environment before printing this email

Please be aware we are often asked for copies of the correspondence we
exchange with third parties. We are subject to all of the laws we deal
with, including the data protection laws and the Freedom of Information
Act 2000. You can read about these on our website ([4]www.ico.org.uk).
Please say whether you consider any of the information you send us is
confidential. You should also say why. We will withhold information where
there is a good reason to do so.
For information about what we do with personal data see our privacy notice
at [5]www.ico.org.uk/privacy-notice
 

References

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Dear ICO Casework,

Thank you for at least providing some response.

We all understand that the current pandemic is placing a strain on organisations, and that must include the ICO. However, many of the ICO's staff must surely be well able to work from home given the nature of their job, and my FOI request is very simple and straightforward and could certainly be dealt with by a staff member working from home with access to ICO resources.

Reasonable delays are quite acceptable, especially when requestors are kept informed of such delays, but please do not let the current crisis become an excuse for doing nothing at all.

Yours sincerely,

M Boyce

Dear ICO Casework,

I notice that the ICO are still responding to some FOI requests, but just not mine.

I notice that the ICO is still continuing to progress and publish decision notices.

I notice that the ICO asked the First-tier Tribunal for a General Stay on ALL PROCEEDINGS from 1 April 2020 until 27 May 2020 because it was closed due to Covid19.

I will be forwarding this request to the Tribunal shortly I if do not receive some sort of sensible reply.

Yours sincerely,

M Boyce

Olivia Taylor left an annotation ()

The courtesy of an explanation pre-expiry of the 20 working day period would also have been reasonable.

M Boyce left an annotation ()

Yes a bit of courtesy would be nice.

My FOI request is very simple and straightforward and it would take the ICO probably no more than 10 minutes to research and provide an answer. They are not unable to provide a response, they are just unwilling to do so because they have been breaking the law.

Olivia Taylor left an annotation ()

I do not understand their approach to the legislation; how in the absence of a formal amendment, the ICO can arbitrarily say 'the 20-day law is no longer effective' i.e. how the ICO has the power to permit a breach. They seem to be a law unto themselves.

M Boyce left an annotation ()

The ICO are certainly a law unto themselves, as my FOI request above also shows. They are like Government advisors - the law does not apply to them.
On the ICO website it says;

'Whilst we can't extend statutory timescales, we will not be penalising authorities for prioritising other areas...'

What other areas are the ICO themselves prioritising that means that they cannot adhere to the statutory timeframe for FOI requests?

They also say they have less staff and their office is closed, and yet they can easily work from home. They are worried that they will catch Covid19 from their computers, but they seem unaware that computers do not give people viruses, and the viruses that computers get do not spread to humans: you do not get Covid19 from a computer virus. But I think this message is falling on hands over ears at the ICO.

It seems to me that the ICO are simply using the current pandemic to avoid answering questions that will expose their unlawful behaviour.

Dear ICO Casework,

OK, you've had plenty of time to reply by now. You are responding to other FOI requests, but not mine. You now have 7 days to provide a substantive response before I refer the matter to the First-tier Tribunal.

You are the regulator of the FOIA, but that does not give you the right to ignore it.

Yours sincerely,

M Boyce

M Boyce left an annotation ()

The following quote from the document titled:

'Update on ways of Working in GRC', dated 15 June 2020, in relation to the Covid 19 pandemic, is a reminder that procrastination is not only the thief of time, but it is also the thief of justice:

'Regard must be had to the importance of the continued administration of justice. JUSTICE DELAYED IS JUSTICE DENIED even when the delay results from a response to the currently prevailing circumstances.'

The ICO would do well to reflect that 'justice delayed is justice denied'; then again, perhaps they are only too aware of that fact.

Tim Turner left an annotation ()

It's worth saying that you probably can't complain to the Tribunal about the ICO's actions here (i.e. it would be a waste of time). They're currently dealing with you as a public authority. Any complaint about an FOI request made to a public authority has to be made to the FOI regulator, which is the ICO. So you'd have to complain about the ICO to the ICO first.

M Boyce left an annotation ()

I have already complained to the ICO about the ICO - that is asking for an internal review (which has not been forthcoming). The ICO are the regulator of the FOIA, but they are also subject to it. They think they are above the law, but their actions, or inactions, are also subject to the First-tier Tribunal.

John Golding left an annotation ()

You are not alone and I am having similar experiences with the ICO.

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

I suspect there are many more like us. This department is unfit for purpose.

M Boyce left an annotation ()

Yes John, you are quite right. Justice in this country exists only to serve the establishment - it always has and it always will.

Tim Turner left an annotation ()

The internal review is an inherent part of FOI. You would ask for the internal review whoever the public authority was. The next step - even if the public authority in question is the ICO - is to complain to the ICO in its capacity as the FOI regulator.

Feel free to waste your time going to the Tribunal, but a waste of their time and yours is what it's going to be.

M Boyce left an annotation ()

Yes I get what you're saying, but what is the point in complaining to the ICO when they are point blank repeatedly and openly ignoring the law? Are they suddenly going to start obeying the law just because someone complains about them not obeying the law? Not a chance. So, waste of time or not, the matter will be referred to the FTT.

Tim Turner left an annotation ()

What is the point of taking up the Tribunal's time (and your own) when it will amount to nothing? What point do you think you're making? The law says you have to appeal to the ICO as regulator and the Tribunal will not accept your appeal if you haven't done that. Unless I'm very much mistaken, you've just lost a case at the Tribunal; why do it again for absolutely no benefit?

M Boyce left an annotation ()

How do you know there is no point in appealing to the Tribunal? You say the LAW SAYS you have to apply to the ICO first. Yes and THE LAW SAYS the ICO should also obey the law, like the rest of us, and not just blatantly ignore it. If the ICO can ignore the law, then why can't I and others? Again, one rule for the establishment and another for the rest of us - and there is real benefit in highlighting that fact.

As for just losing appeal EA/2019/0334, well I have just appealed that to the Upper-tier Tribunal, so we've yet to see about that. In any case, just because someone loses an appeal does not necessarily mean that appeal has served no purpose - it has shown me and others that Tribunals and Tribunal judges are not always right . It is not lawful for judges to ignore material evidence, and that is a legal fact.

John Golding left an annotation ()

Just to give you an idea of the attitude of the ICO, after I posted my request to them online, they have complained to the Administrator of this site.

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

So they consider it is acceptable for them to fail to take any action, or to respond, for long periods of time but when I put details online it is considered vexatious.

I do wonder if there is some political aspect to the ICO's conduct and repeated failures to take action, or deal with cases appropriately. After all it was Tony Blair's Labour government which brought this legislation in. We now have a Tory government which likes to be able to conceal and cover up anything that they decide to want hidden. Has the ICO had some instruction to go easy on these public bodies, itself included?

M Boyce left an annotation ()

I agree John. I can't see that you've done anything wrong. Have you been in touch with WDTK to find out what is going on?

Yes Tony Blair did bring in the FOIA 2000, but only because he was forced to: We were one of only a few liberal democracies in the world without a freedom of information regime. When it was finally fully enacted in 2005 it had been so watered down by the Labour Government that the numerous exemptions made it much weaker than other regimes in other countries, and the regulator, the ICO, was given so much power that the Act was neutered even further.

I think you would agree that if the ICO were being consistent in their behaviour then it would be more understandable and more acceptable. They are still progressing cases, and they are still responding to some requests, but not others. My request is very simple and very straightforward, so there should be no problems.

In the final analysis, it is clear that they are using the pandemic to avoid their legal duty.

George White left an annotation ()

I do not get it either. You write to the ICO seeking information from them. They say 'due to the pandemic period it has
not been possible to respond to your information request on time'. Why? I can say due to the pandemic I can't do this or that, but I explain this.
The ICO leaves themselves open to criticism by expecting everyone to accept this at face value. Seems they cannot explain just using it like 'good day to bury bad news' .

M Boyce left an annotation ()

Exactly.

If there are genuine reasons why they cannot respond to my request, and some others, then just explain why. If there is good reason then fine, I am not unreasonable and will wait.
It is simply not good enough to say that the ICO is hiding behind the settee for fear of getting Covid-19 by working from home. What about others who are having to work and cannot hide behind the settee? Many don't even have the luxury of working from home. Of course the ICO should take measures to protect their staff, but ignoring requests without good reason should never be such a measure.

The ICO are using the current pandemic to flout the law and they are abusing the trust that is placed in them as a regulator of the FOIA.

M Boyce left an annotation ()

I phoned the ICO this morning with the following questions:

Is the ICO office still closed at the moment?

Yes.

Have any of the ICO staff been furloughed?

No.

How many staff are working from home?

All of them.

Do all those staff working from home have full access to ICO information with regard to answering FOI requests and progressing complaints?

Yes.

All this now begs the question of why the ICO are not responding to certain FOI requests (like mine) and their excuse that they are 'protecting' their staff from Covid-19 by refusing to answer certain FOI requests? How does this action, or inaction, protect their staff?

M Boyce left an annotation ()

What confidence can any of us have in an FOIA regulator that persistently and openly flouts the law that it will uphold complaints against government bodies, and other quangos like itself, that are also flouting the law?

In nearly all substantive cases the ICO always finds in favour of the establishment. When the ICO openly flouts the law then we can hardly be surprised if that regulator then refuses to take action against government bodies and quangos that also flout the law.

The ICO was set up by the government to act for the government - and now we have the proof of that fact.

John Golding left an annotation ()

I am sorry to report that the administrators of this site seem to display a great bias towards the ICO when dealing with complaints from that body about FOI requests. The ICO complained about my request asking about failures in two cases that had been referred to the ICO. Judging from the response from WDTK, they seem to side with the ICO despite clear evidence of failures to act for many months in one case and years in another.

I do know a well known national publication has had serious problems with the ICO over a period of about 18 months now. They are struggling to get anywhere the same as us.

May be an MP could assist us with our problems?

M Boyce left an annotation ()

Getting in touch with your MP might well be worth considering, but sadly, getting in touch with mine would be about as helpful as having a wasp trapped in your underwear whilst riding a motorbike.

M Boyce left an annotation ()

Notice as well that the ICO are not only continuing to progress complaints brought to them in a timely manner, but they have also never - never - been so up to date in publishing their decision notices.

So why can't they deal with FOI requests about themselves? Why would this work put them at risk from Covid-19, but progressing complaints about other authorities and publishing decision notices about other authorities not put them at risk?

This matter does now have to be referred to the First-tier Tribunal. We will see if they decide to turn a blind eye.

ICO Casework, Information Commissioner's Office

1 Attachment

24 July 2020

Case Reference: IC-40491-V6R3

Dear M Boyce,

Please find attached our response to your request of 9 April 2020.

Yours sincerely,

Shannon Keith
Senior Information Access Officer
Information Commissioner's Office

Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF
[1]ico.org.uk [2]twitter.com/iconews
Please consider the environment before printing this email.

Please be aware we are often asked for copies of the correspondence we
exchange with third parties. We are subject to all of the laws we deal
with, including the data protection laws and the Freedom of Information
Act 2000. You can read about these on our website ([3]www.ico.org.uk).
Please say whether you consider any of the information you send us is
confidential. You should also say why. We will withhold information where
there is a good reason to do so.
For information about what we do with personal data see our privacy notice
at [4]www.ico.org.uk/privacy-notice.

References

Visible links
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2. https://twitter.com/iconews
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Dear Information Commissioner's Office,

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

I am writing to request an internal review of Information Commissioner's Office's handling of my FOI request 'ICO contravention of section 42 of the FOIA'.

I am not sure why there was a nearly three month delay just for you to refuse my request.

Under Section 16 of the FOIA you are REQUIRED to provide advice and assistance. You have refused to do so.

I was asking for important information about the ICO repeatedly breaking the law with regard to Section 42 FOIA, and you have refused to provide advice and assistance.

In all of the above seven ICO decision notices it states that the ICO accepts that 'only in very exceptional cases' can the public interest test favour disclosure of witheld information under Section 42.

Yet in the recent ICO DN FS50906021, dated 3 July 2020, it states the following at paragraph 52:

'Although the Commissioner accepts that there is a strong element of public interest inbuilt into legal professional privilege, she does NOT accept, as previously argued by some public authorities that the factors in favour of disclosure need to be exceptional for the public interest to favour disclosure.'

'SOME PUBLIC AUTHORITIES'? You mean the ICO.

So does the ICO accept 'exceptionality' or not? We are none the wiser, and this continued confusion does not display transparency, only opacity and obfuscation.

If there is a pattern of certain caseworkers blatantly breaking the law with regard to their interpretation of Section 42 cases, then there is a strong public interest in this being disclosed.

You know who the caseworkers are for the above seven cases and it would be a very simple thing just to let me know who they are in anonymised form, or if they choose to reveal their name then all the better.

You are obviously going to uphold the decision above in your internal review, because you always do, but having waited for nearly three months for your refusal, if I do not receive a reply this time within 20 working days then I will proceed straight to the First-tier Tribunal without any delay.

You are an organization that is tasked with encouraging openness and transparency in public authorities, and yet it seems to be your mission for yourselves to pursue a policy and practice of secrecy and lack of transparency. This is now clear for all to see.

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

Yours faithfully,

M Boyce

J Roberts left an annotation ()

'Although the Commissioner accepts that there is a strong element of public interest inbuilt into legal professional privilege, she does NOT accept, as previously argued by some public authorities that the factors in favour of disclosure need to be exceptional for the public interest to favour disclosure.'

This suggests to me that information has been circulated to staff clarifying the Commissioner's position (or perhaps radical change of position).

M Boyce left an annotation ()

I'm inclined to agree.

If there has been a major change of position from the ICO then they need to say so.

I would sincerely hope that the FTT in my case EA/2019/0032 (which should be decided soon!) would make it clear that the ICO has broken the law with regard to section 42. Decisions of FTT's are of course not binding on others, but if I have to appeal to the UTT then that decision, in terms of clarification of the law, would be binding on others.

To my knowledge other section 42 appellants have never made such a strong and explicit case against the ICO on this issue.

All other FTT decisions have always equivocated on the law on this issue: merely describing it as 'not the correct RULE', instead of contrary to the LAW.

There now finally needs to be clarity on this important issue from both the ICO and the FTT. I suspect the ICO are waiting for the FTT to blink first.

M Boyce left an annotation ()

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

Also in the latest section 42 FOIA decision notice above, it does NOT argue that disclosure of information must be contingent upon extreme exceptionality.

J Roberts left an annotation ()

I also see that paragraph 31 of the decision notice you link to gives examples of factors that will favour disclosure, three of which include:

"large amount of money involved;

"whether or not a significant group of people are affected by the advice or resulting decision; and

lack of transparency in the public authority's actions".

Your request to the PHSO ticks these three boxes in my view:

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

It may be, however, that the ICO would not consider the pontential legal costs a claimant could face by pursuing judicial review as either large or relevant.

J Roberts left an annotation ()

For anyone interested in what a judicial review could cost, here is a case concerning the PHSO:

"73. MR JUSTICE JAY: How much do you seek?

74. MR MAURICI: My Lord, the schedule, the total figure is £80,654.35."

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

M Boyce left an annotation ()

Yes judicial review really is only for the rich or the brave (or the foolhardy), unless it involves an immigration case, where you will get legal aid.

M Boyce left an annotation ()

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

The above recently published section 42 FOIA Decision by the FTT is interesting in how it contrasts with my case currently with the Tribunal.

The ICO DN for the Tim Crook case is FS50788438 and in paragraph 48 it states:

'The Commissioner does NOT consider that the public interest considerations need to be exceptional [absolute in practice]...'

And in paragraph 86 of the FTT Decision it states:

'That is not to say that it is an absolute exemption [section 42 FOIA], and the Tribunal is satisfied that the Commissioner did not treat it as such.'

Unlike in my case where the Commissioner stated the need for extreme exceptionality in the DN and then has maintained this absolute stance throughout its further submissions to the Tribunal.

I am more than satisfied that the Commissioner has treated section 42 in my case as an absolute exemption in practice, because that is what they have demonstrably done.

Will the Tribunal agree? We will see.

M Boyce left an annotation ()

Not sure why the link is coming up as 404, but the Decision can still be found on the GRC website on page 3 of the published Decisions under Prof Tim Crook v IC, published date on website 23/04/2019.

J Roberts left an annotation ()

Something from the Scottish Information Commissioner:

'153. The Commissioner acknowledges that there will be occasions where the significant public interest in favour of withholding legally privileged communications may be outweighed by the public interest in disclosing the information. For example, disclosure may be appropriate where:

· the privileged material discloses wrongdoing by or within an authority

· the material discloses a misrepresentation to the public of advice received

· the material discloses an apparently irresponsible and wilful disregard of advice

· a large number of people are affected by the advice

· the passage of time is so great that disclosure cannot cause harm.'

http://www.itspublicknowledge.info/Appli...

Decision Notice 039/2020
Public authority: Glasgow City Council

ICO Casework, Information Commissioner's Office

1 Attachment

10 August 2020

Case Reference: IC-40491-V6R3

Dear M Boyce

Thank you for your email of 24 July 2020 in which you asked for an
internal review of the response to your information request. Please find
our response attached.

Yours sincerely,

Ian Goddard
Information Access Service Manager
Information Commissioner's Office
For information about what we do with personal data see our privacy notice
at [1]www.ico.org.uk/privacy-notice.

References

Visible links
1. https://www.ico.org.uk/privacy-notice

Dear ICO Casework,

You state it wouldn't be reasonable to expect you to provide advice and assistance under the FOIA. So why would you provide advice and assistance outside of the FOIA? You clearly wouldn't do so.

You state that my accusation that the ICO has broken the law with regard to section 42 FOIA is unfounded. It is anything but unfounded. The FOIA legislation states that legal advice should be disclosed if the public interest favours disclosure. The legislation does not state that the public interest must be 'very exceptional', as the ICO repeatedly states it must be.

The First-tier Tribunal has repeatedly stated that the ICO is not using the 'correct rule'. What rule are they referring to? Is it a slide rule or the rule of law? My money's on the latter. Is yours?

Pattern or no casework pattern, the ICO has been breaking the law with regard to section 42, and that is a fully founded accusation.

Yours sincerely,

M Boyce

icocasework, Information Commissioner's Office

To read this email in English click [1]here

I darllen yr ebost yn y Gymraeg, cliciwch [2]yma

Thank you for contacting the Information Commissioner’s Office. We confirm
that we have received your correspondence. During the Coronavirus
pandemic, please see our [3]website for updates on the service you can
expect from us during this time.  You can also call us on 0303 123 1113 or
contact us via live chat. 

 
If you have asked us for advice - we will respond within 14 days. While
you wait, you should regularly check our [4]website for relevant
guidance, as we are updating this all the time. You should also read our
[5]GDPR myth busting blogs. If you have raised a question that we have
answered on our website, we may respond by sending you a link to it.  But
we will do our best to provide you with the information you need.
 
If you have made a new complaint - we’re unlikely to look into it unless
you have raised it with the [6]responsible organisation (for a data
protection complaint) or the [7]responsible public authority (for a
freedom of information complaint) first. Please make sure you have sent
us a copy of their final response to you. We will assign your complaint to
a case officer as soon as we can, and they will contact you in due
course. 

If your correspondence relates to an existing case - we will add it to
your case and consider it on allocation to a case officer. If you believe
we have either failed to take appropriate steps to respond to your data
protection complaint, or we do not provide you with information about the
progress or outcome of your complaint within the next three months, you
may be able to apply to the [8]First-tier Tribunal to require us to
respond to your complaint or to provide you with information about its
progress.
 
If you represent an organisation and you are reporting a personal data
breach under the GDPR or the Data Protection Act 2018 - we aim to contact
you within seven days to confirm receipt and to provide you with a case
reference number. If you want advice urgently, you should telephone our
helpline on 0303 123 1113. If we consider the incident is minor or you
have indicated that you do not consider it meets the threshold for
reporting, you may not receive a response from us, or we may respond by
sending you a link to the relevant part of our guidance. You can find out
more about [9]data breach reporting on our website.

Where a significant cyber incident occurs, you may also need to report
this to the National Cyber Security Centre (the NCSC). To help you decide,
you should read the NCSC’s guidance about their role and the type of
incidents that you should consider reporting.  

Incidents that might lead to a heightened risk of individuals being
affected by fraud, should be reported to Action Fraud – the UK’s national
fraud and cybercrime reporting centre. If your organisation is in
Scotland, then reports should be made to Police Scotland.

If you are a Communications Service Provider reporting a security breach
under the Privacy and Electronic Communications Regulations – you will
need to report the security breach via this [10]secure portal.

If you represent an organisation and are reporting a potential incident
under the NIS Directive - we will contact you as soon as we can. You can
find out more about the [11]NIS Regulations on our website.

If you represent an organisation and you are reporting a security breach
within the definition of the eIDAS regulation – we will contact you as
soon as we can. You can find out more about the [12]eIDAS regulation on
our website.

If you have reported spam email – we are unlikely to need to contact you
again, unless we need more information to help with our investigations. We
publish details about the [13]action we've taken on nuisance messages on
our website.
 
If you have asked for information you think we might hold - we will
contact you if we need any more information to help us respond. Otherwise,
we will respond within our [14]public and statutory service levels.
 
If you have only copied your correspondence to us - we will not respond.
 
There is more information on our [15]service standards and what to expect
webpage. You can also call 0303 123 1113. We welcome calls in Welsh on
0330 414 6421. You can also contact us on [16]live chat.
 
For information about what we do with personal data please see our
[17]privacy notice.
 
Yours sincerely
 
The Information Commissioner’s Office
 
Our newsletter
You can [18]sign up to our monthly e-newsletter
 
 
Pwnc: Mae’ch neges ebost wedi dod i law

Diolch yn fawr ichi am gysylltu â Swyddfa’r Comisiynydd Gwybodaeth. Yn
ystod y pandemig Coronafeirws, gweler [19]ein gwefan am ddiweddariadau ar
y gwasanaeth sydd ar gael i’r cyhoedd ar hyn o bryd. Hefyd, mae’n bosib
ein ffonio ar 0303 123 1113, neu gysylltu â ni trwy sgwrs fyw.

Os ydych wedi gofyn am gyngor – byddwn yn ymateb o fewn 14 diwrnod. Tra
byddwch yn aros, dylech edrych yn rheolaidd ar ein [20]gwefan i chwilio am
ganllawiau perthnasol, gan eu bod yn cael eu diweddaru drwy’r amser. Hefyd
dylech ddarllen ein [21]blogiau ynghylch mythau’r GDPR. Os ydych wedi codi
cwestiwn sydd wedi’i ateb ar ein gwefan, mae’n bosibl y byddwn yn ymateb
drwy anfon dolen atoch i gysylltu â’r ateb.  Ond fe wnawn ein gorau glas i
roi’r wybodaeth angenrheidiol ichi

Os ydych wedi gwneud cwyn newydd – dydyn ni ddim yn debygol o edrych i
mewn iddo oni bai eich bod wedi’i godi’n gyntaf gyda’r [22]sefydliad
cyfrifol (cwyn am ddiogelu data) neu’r [23]awdurdod cyhoeddus cyfrifol
(cwyn am ryddid gwybodaeth). Gofalwch eich bod wedi anfon copi aton ni o’u
hymateb terfynol ichi. Byddwn yn rhoi’ch achos i swyddog achosion cyn
gynted ag y gallwn, a bydd y swyddog yn cysylltu â chi maes o law.

Os yw’ch gohebiaeth yn ymwneud ag achos sydd eisoes yn bod - byddwn yn ei
hychwanegu at eich achos ac fe gaiff ei hystyried ar ôl cael ei dyrannu i
swyddog achosion. Os ydych yn credu ein bod ni naill ai wedi methu cymryd
camau priodol i ymateb i'ch cwyn diogelu data, neu heb ddarparu gwybodaeth
ichi am gynnydd neu ganlyniad eich cwyn o fewn y tri mis nesaf, efallai y
byddwch yn gallu gwneud cais i'r [24]Tribiwnlys Haen Gyntaf i’w gwneud yn
ofynnol inni ymateb i'ch cwyn neu ddarparu gwybodaeth ichi am gynnydd eich
cwyn.

 
Os ydych yn cynrychioli sefydliad a’ch bod yn rhoi gwybod am drosedd data
personol o dan y GDPR neu Ddeddf Diogelu Data 2018 – rydym yn anelu at
gysylltu â chi o fewn saith niwrnod calendr i gadarnhau bod eich neges
wedi dod i law ac i roi rhif cyfeirnod achos ichi. Os oes arnoch eisiau
cyngor ar frys, dylech ffonio’n llinell gymorth ar 0303 123 1113. Os ydym
o’r farn bod y digwyddiad yn un mân neu os ydych chi wedi nodi nad ydych
o’r farn bod y digwyddiad yn cyrraedd y trothwy i roi gwybod amdano, mae’n
bosibl na chewch ymateb gennym, neu efallai y byddwn yn ymateb drwy anfon
dolen atoch i gysylltu â’r rhan berthnasol o'n canllawiau. Cewch ragor o
wybodaeth am [25]roi gwybod am droseddau data ar ein gwefan.

Pan fo digwyddiad seibr arwyddocaol yn digwydd, mae’n bosibl y bydd angen
ichi roi gwybod amdano hefyd i’r Ganolfan Seiberddiogelwch Genedlaethol
(yr NCSC). I’ch helpu i benderfynu, dylech ddarllen canllawiau’r NCSC ar
eu rôl a’r math o ddigwyddiadau y dylech ystyried rhoi gwybod amdanyn nhw.

Dylai digwyddiadau a allai arwain at risg uwch y bydd twyll yn effeithio
ar unigolion gael eu cyfleu i Action Fraud – sef canolfan genedlaethol y
Deyrnas Unedig ar gyfer rhoi gwybod am dwyll a seiberdroseddau. Os yw eich
sefydliad yn yr Alban, yna i Heddlu’r Alban y dylech chi roi gwybod.

Os ydych yn Ddarparwr Gwasanaethau Cyfathrebu sy’n rhoi gwybod am dor
diogelwch o dan y Rheoliadau Preifatrwydd a Chyfathrebu Electronig – bydd
angen ichi roi gwybod am y tor diogelwch drwy’r [26]porth diogel hwn.

Os ydych yn cynrychioli sefydliad a’ch bod yn rhoi gwybod am ddigwyddiad
posibl o dan Gyfarwyddeb yr NIS – byddwn yn cysylltu â chi cyn gynted ag y
gallwn. Cewch ragor o wybodaeth am [27]Reoliadau’r NIS ar ein gwefan.

Os ydych yn cynrychioli sefydliad a’ch bod yn rhoi gwybod am dor diogelwch
o fewn y diffiniad yn Rheoliad eIDAS – byddwn yn cysylltu â chi cyn gynted
ag y gallwn. Cewch ragor o wybodaeth am [28]Reoliad eIDAS ar ein gwefan.

Os ydych wedi rhoi gwybod am ebost sbam – mae’n annhebygol y bydd angen
inni gysylltu â chi eto, oni bai bod arnon ni angen rhagor o wybodaeth i
helpu yn ein hymchwiliad. Rydym yn cyhoeddi gwybodaeth am [29]y camau
rydyn ni wedi’u cymryd ynghylch negeseuon niwsans ar ein gwefan.

Os ydych wedi gofyn am wybodaeth yr ydych yn credu ei bod gennyn ni –
byddwn yn cysylltu â chi os bydd arnom angen rhagor o wybodaeth i’n helpu
i ymateb. Fel arall, byddwn yn ymateb ichi o fewn ein [30]lefelau
gwasanaeth statudol a chyhoeddus. 

Os ydych wedi anfon copi o’ch gohebiaeth aton ni ond dim byd arall –
fyddwn ni ddim yn ymateb.

Mae rhagor o wybodaeth ar ein tudalen gwe [31]safonau gwasanaeth a beth
i’w ddisgwyl. Gallwch ffonio hefyd ar 0330 414 6421, neu yn Saesneg ar
0303 123 1113. Gallwch gysylltu â ni hefyd i gael [32]sgwrs fyw.

I gael gwybodaeth am yr hyn rydyn ni’n ei wneud â data personol, gweler
ein [33]hysbysiad preifatrwydd. 

Yn gywir

Swyddfa’r Comisiynydd Gwybodaeth

Ein cylchlythyr

Gallwch [34]gofrestru i gael ein e-gylchlythyr misol

 

 

References

Visible links
1. file:///tmp/foiextract20200810-22513-cou7db#English
2. file:///tmp/foiextract20200810-22513-cou7db#Gymraeg
3. https://ico.org.uk/global/data-protectio...
4. https://eur03.safelinks.protection.outlo...
5. https://eur03.safelinks.protection.outlo...
6. https://eur03.safelinks.protection.outlo...
7. https://eur03.safelinks.protection.outlo...
8. https://eur03.safelinks.protection.outlo...
9. https://eur03.safelinks.protection.outlo...
10. https://eur03.safelinks.protection.outlo...
11. https://eur03.safelinks.protection.outlo...
12. https://eur03.safelinks.protection.outlo...
13. https://eur03.safelinks.protection.outlo...
14. https://eur03.safelinks.protection.outlo...
15. https://eur03.safelinks.protection.outlo...
16. https://eur03.safelinks.protection.outlo...
17. https://eur03.safelinks.protection.outlo...
18. https://eur03.safelinks.protection.outlo...
19. https://ico.org.uk/global/data-protectio...
20. https://eur03.safelinks.protection.outlo...
21. https://eur03.safelinks.protection.outlo...
22. https://eur03.safelinks.protection.outlo...
23. https://eur03.safelinks.protection.outlo...
24. https://eur03.safelinks.protection.outlo...
25. https://eur03.safelinks.protection.outlo...
26. https://eur03.safelinks.protection.outlo...
27. https://eur03.safelinks.protection.outlo...
28. https://eur03.safelinks.protection.outlo...
29. https://eur03.safelinks.protection.outlo...
30. https://eur03.safelinks.protection.outlo...
31. http://ico.org.uk/about_us/how_we_work/s...
32. https://eur03.safelinks.protection.outlo...
33. https://eur03.safelinks.protection.outlo...
34. https://eur03.safelinks.protection.outlo...

ICO Casework, Information Commissioner's Office

11 August 2020

Case Reference: IC-40491-V6R3

Dear M Boyce 

There is nothing further I can add to my previous response. If you remain
dissatisfied I suggest you follow the steps outlined in that letter.

Yours sincerely,

Ian Goddard
Information Access Service Manager
Information Commissioner's Office

M Boyce left an annotation ()

The ICO are up to their usual tricks of peddling falsehoods as truths. In the latest case on section 42 FOIA, dated 11 November 2020 the ICO again state that it has only been OTHER authorities that have made the assertion that cases have to be EXCEPTIONAL for release of legally privileged advice. The ICO continue to propagate this untruth: it is the ICO THEMSELVES that have repeatedly argued for the illegal exceptionality argument.

They are an utter disgrace.

M Boyce left an annotation ()

The ICO have now decided to change their exemption on this request to section 14 FOIA (vexatious). Surprise surprise.
They know they hold the information so they have changed to vexatious exemption because this is always a get out of jail card for an authority.
Tellingly they are calling me vexatious as well as the request, and this is not legal. It is the request that is considered vexatious and not the requester. Why doesn't the ICO understand the law it regulates? They reference other 'vexatious' requests from other authorities, which they are not allowed to do.
They are also refusing to post the new refusal/exemption on the WDTK site - they have told me to do it myself. I said no, you do it because the request was made via WDTK and the response should be made by WDTK so the public know that this is full and accurate response and not an edited version that I have made up.
If the ICO continue to refuse to supply the response via WDTK then I will contact the WDTK website for advice.

J Roberts left an annotation ()

M Boyce,

'They are also refusing to post the new refusal/exemption on the WDTK site.'

The ICO's guidance re WDTK:

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

'WhatDoTheyKnow.com

106. Requests made through the whatdotheyknow.com website will be valid, provided the requester supplies their real name and describes the information concerned.

107. With respect to the address for correspondence, we consider the @whatdotheyknow.com email address provided to authorities when requests are made through the site to be a valid contact address for the purposes of Section 8(1)(b).

108. In any case where it is not reasonably practicable for the authority to provide the information in the electronic format required by the whatdotheyknow.com site, it should ask the requester to provide an alternative postal address where it can send its full response.'

Did the ICO inform you that it was 'not reasonably practicable' to respond via WDTK?

The application of vexatiousness to the requester is a new and worrying development. You are only asking for anonymized information relating to the use of S42. Your request is of considerable public interest and could be dealt with easily and quickly.

Here is something I found concerning a vexatious litigant:

'19. The witness statements of Ms George and Mr Kenyon also give details of numerous subject access requests made by Mrs Harrold under the Data Protection Act 2018 and requests for information under the Freedom of Information Act 2000. Mr Kenyon concludes as follows:

"The NMC does not seek to prevent Mrs Harrold from exercising her statutory rights under the Data Protection Act 2018 or the Protection from Harassment Act 1997, however, it believes that Mrs Harrold's use of data subject access requests, alongside her continued efforts to use internal reviews and complaint procedures to pursue well-trodden arguments (in addition to the complaints she makes about lawyers instructed on the case for the NMC to the relevant legal regulators), are a clear indication that she intends to litigate against the NMC following the end of the GCRO, and to do so by making the same stale complaints that were considered by the courts when the previous CROs were made."

47. For the reasons, I will extend for a further two years the existing GCRO, which restrains Mrs Harrold from bringing further claims or making further applications in any County Court, the High Court, the Employment Tribunal or the Employment Appeal Tribunal, save with the permission of the applications judge in the Queen's Bench Division. I refuse the application to extend the scope of that order to prevent Mrs Harrold from making complaints to the relevant legal regulators.'

https://www.bailii.org/ew/cases/EWHC/QB/...

[2020] EWHC 1108 (QB)

M Boyce left an annotation ()

Thanks for this information J Roberts.

The ICO said that the new refusal notice contained personal information and gave me the option of receiving this notice via my email or by WDTK. I said I would like the information sent to my email so I could check it first. I then informed them that it was quite ok to then proceed to send the same information via WDTK. They said that I should upload the information myself and I insisted that they should do so. They have not responded since, despite my follow-up request.

The ICO themselves say in their published guidance on section 14 that it is a request that should be considered vexatious and not the requestor.
They say that the information sought is of no public interest. Wrong.
They say that I have targeted ICO staff as part of a vendetta. Wrong.
They say there is no inconsistency in their published cases on section 42 FOIA. Wrong.
They say that I will continue to make requests on the same subject. Wrong.
They say that their staff have been harassed and distressed by my accusation that the ICO has a self-evidently and patently inconsistent approach to section 42 FOIA and the very exceptional/ no exceptionality argument. Wrong.

At the end of the day the ICO can deny the undeniable until they are blue in the face, but the public, even if not a subsequent tribunal, will clearly see their deeply worrying hypocrisy, and it will be on public record for all to see for all time. By continuing to propagate inconsistency in legal approach the ICO will only make people distrustful of them. That is not a vexatious opinion, but simply a rational and level-headed FACT.

J Roberts left an annotation ()

'They say that the information sought is of no public interest. Wrong.'

If the information, for example, revealed that one individual consistently used 'very exceptional' I think it would disclose something of public interest.

'They say there is no inconsistency in their published cases on section 42 FOIA. Wrong.'

From memory, the position of the Commissioner has changed greatly on the s42 exemption.

'They say that I have targeted ICO staff as part of a vendetta. Wrong.'

'They say that their staff have been harassed and distressed by my accusation that the ICO has a self-evidently and patently inconsistent approach to section 42 FOIA and the very exceptional/ no exceptionality argument. Wrong.'

These are serious allegations.

'Harassment is a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress: see Thomas v News Group Newspapers Ltd [2002] EMLR 78, para 30 (Lord Phillips of Worth Matravers MR).'

Hayes (FC) (Respondent) v Willoughby (Appellant) [2013] UKSC 17

https://www.bailii.org/uk/cases/UKSC/201...

M Boyce left an annotation ()

The ICO have refused to publish the response below, so I have done so.

I will take this to tribunal.

We have recently been contacted by the Information Commissioner in connection with your section 50 complaint regarding your request handled under our reference IC-40491-V6R3.

The Commissioner has asked that we reconsider our response to this request. Our previous position was that the information you have requested is not held. We now find that, given the context and history to this request, it would be more appropriate to refuse the request in line with the provisions of section 14 of the FOIA, as we consider it to be a vexatious request.

As we now seek to rely on section 14 I have submitted our reasoning in full below.

This refusal has been made having carefully considered the ICO’s published guidance on the application of section 14 FOIA:

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

Section 14 (1) FOIA states that:

‘14.—(1) Section 1(1) does not oblige a public authority to comply
with a request for information if the request is vexatious.’

The ICO’s guidance explains that when deciding on whether or not a request is vexatious, the key question to be asked is, ‘…whether the request is likely to cause a disproportionate or unjustified level of disruption, irritation or distress’.

The guidance also states that ‘the context and history in which a request is made will often be a major factor in determining whether the request is vexatious, and the public authority will need to consider the wider circumstances surrounding the request before making a decision as to whether section 14(1) applies.

In practice this means taking into account factors such as:

Other requests made by the requester to that public authority (whether complied with or refused).

The number and subject matter of those requests.

Any other previous dealings between the authority and the requester.’

There can be a number of indicators which point to a request being vexatious and as you can see a public authority is able to take into account its previous dealings with a requester.

We have taken into account the context, history and continuing pattern of behaviour in your contact and dealings with us in ascertaining this latest request to be vexatious.

There are a number of indicators that point to this request being vexatious.

Your latest request clearly stems from your dissatisfaction with the ICO and the way we have handled your section 50 complaints, specifically around our interpretation of the exemption at section 42 of the FOIA. You have made a number of previous requests on this topic and have continued to display a level of intransigence and unreasonable persistence in relation to these matters, as well as couching your requests in a derogatory manner, often making unfounded allegations of unlawful behaviour by the ICO and its staff. This request for instance, was sent with the heading: “ICO contravention of section 42 of the FOIA” and contains phrases such as: “In order to ascertain whether there is a pattern of practice in non-adherence to the law please provide an anonymised identifier for each caseworker”. Previous requests and associated correspondence have been couched in similar terms and contain similar accusations, such as IRQ0857968 (made in 2019), entitled ‘Unfair schizophrenia within the ICO’ and accuses the ICO of having “a deeply schizophrenic and unfair approach to section 42 cases”.

The frequently accusatory and abusive tone of your correspondence continues in the associated correspondence and in annotations left on the public forum of the WDTK website in connection with your requests, often attacking the integrity and competence of ICO staff members.

For instance in connection with a previous request relating to section 42 that I mentioned above, IRQ0857968, responded to in July 2019, you have made the following comments in your request for review:

“Your response is exactly what I expected it would be: evasive and unhelpful at best

...

I expect the ICO internal review to be nothing more than sham, but please be assured that I will take this case to Tribunal as soon as I receive your reply.”

Additionally, you have left annotations on the WDTK website in relation to this request, such as:

“It is extremely worrying that such a deficient organisation is tasked and publicly financed to deal with freedom of information and data protection issues. One minute they seem quite content to fine companies like British Airways hundreds of millions of pounds for data breaches and the next minute they are doing everything they can to protect government departments and government quangos from proper scrutiny and from being held to account for wrongdoing. Such unfair and often arbitrary behaviour should not be tolerated by the tax-payer who expects their taxes to be spend wisely, fairly and efficiently. The ICO are certainly not wise, not fair, and not efficient.”

In other requests you have accused the ICO of being: “either grossly incompetent or are being deliberately deceitful. Which is it?”

And in your internal review request for this particular request you have implied there is “a pattern of certain caseworkers blatantly breaking the law with regard to their interpretation of Section 42 cases”.

Your most recent annotation on the WDTK website, dated 24 November 2020, makes the following statement:

“The ICO are up to their usual tricks of peddling falsehoods as truths. In the latest case on section 42 FOIA, dated 11 November 2020 the ICO again state that it has only been OTHER authorities that have made the assertion that cases have to be EXCEPTIONAL for release of legally privileged advice. The ICO continue to propagate this untruth: it is the ICO THEMSELVES that have repeatedly argued for the illegal exceptionality argument.

They are an utter disgrace.”

It is abundantly clear that your requests and related correspondence demonstrate a derogatory tone, unreasonable persistence and intransigence, as well as regularly making unfounded accusations against ICO staff. In my view this continuing pattern of behaviour is likely to cause a disproportionate or unjustified level of disruption, irritation or distress. We note that you have previously displayed this pattern of behaviour in relation to other public authorities, and this is discussed in detail in this tribunal decision: https://informationrights.decisions.trib...

As noted in this Tribunal decision: “Although the relevant date for considering whether Mr Boyce’s request was vexatious was obviously the date of the request, subsequent events may cast light on the situation as at that date” and it is clear this is also the situation here.

I believe this is further evidenced by the fact that, upon being told there may be delays in our response to your request due to the measures taken to protect ICO staff in the midst of the coronavirus pandemic, you submitted two further requests relating to these arrangements and seized upon the opportunity to accuse ICO staff of using the pandemic to ‘avoid their legal duty’, such as in following annotations made on WDTK of 5 and 26 June:

“It seems to me that the ICO are simply using the current pandemic to avoid answering questions that will expose their unlawful behaviour.”

And;

“In the final analysis, it is clear that they are using the pandemic to avoid their legal duty.”

Given the above context and history, and based on the evidence of our contact with you to date, it is clearly apparent that provision of information is extremely unlikely to resolve anything to your satisfaction and that responding to your requests does not result in any resolution and usually ends up in a cycle of futile correspondence.

We also believe that these requests serve no serious purpose in terms of their wider public interest and are simply an attempt to re-open your grievances and matters we consider to be closed. We note that this request seeks the names, or anonymous identifiers of individual case officers (something we do not consider feasible to do, not least as one of the cases referenced relates to a decision notice issued in connection to your own complaints - you will be fully aware of which case officer dealt with these). It may be helpful to explain that Decision Notices (DNs) issued by the ICO undergo a robust quality checking procedure and are signed off by a senior member of staff as a ‘signatory’ to the DN. This process is detailed in our casework service guides available here and here. This process is designed to “check that the decision notice has been adequately researched, reasoned, evidenced and drafted”. Any inconsistency in approach will be addressed at this stage. The names of the signatories are readily available in the publicly available DNs and accessible to you should you wish to raise any concerns regarding the consistency of approach taken by the ICO. Disclosure of the names of individual case officers will add nothing further to the public understanding of our approach to section 42 complaints and serve only to allow you to pursue his own personal vendetta, and target individual case officers as part of your ongoing grievances. It is my view that this request was not primarily intended to obtain information about the ICO or to achieve fulsome answers to legitimate questions but was intended to continue the harassment of ICO staff and repeat your dissatisfaction with, and criticism of, the ICO. The appropriate route for you to challenge the interpretation of section 42 of the FOIA in a decision notice is via the Information Tribunal. The FOIA is not the appropriate route to attempt to reopen your concerns.

We find therefore, in light of this background and context, this request to be vexatious. We also consider that the request has no serious purpose in terms of the wider public interest and is simply an attempt to re-open matters that have been comprehensively concluded.

I hope that the above explains our position.

Yours sincerely

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Ian Goddard

Information Access Service Manager, Risk and Governance Department

Corporate Strategy and Planning Service

Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF

T. 0330 4146823 F. 01625 524510 ico.org.uk twitter.com/iconews

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J Roberts left an annotation ()

M Boyce,

Thanks for posting this response.

I don't see how your straightforward request would cause a disproportionate or unjustified level of disruption, irritation or distress'. Does not the fact that the ICO has chosen to rely on it at a late stage indicate that it wasn't? Sometimes authorities add or change exemptions at a late stage; however, I am at a loss to understand how any authority could fail to spot a vexatious request an early stage.

I also find it strange that the ICO considers that your request 'has no serious purpose in terms of the wider public interest and is simply an attempt to re-open matters that have been comprehensively concluded .' As I have earlier stated:

'153. The Commissioner [Scottish] acknowledges that there will be occasions where the significant public interest in favour of withholding legally privileged communications may be outweighed by the public interest in disclosing the information. For example, disclosure may be appropriate where:

· the privileged material discloses wrongdoing by or within an authority

· the material discloses a misrepresentation to the public of advice received

· the material discloses an apparently irresponsible and wilful disregard of advice

· a large number of people are affected by the advice

· the passage of time is so great that disclosure cannot cause harm.'

https://www.itspublicknowledge.info/Appl...

DN FS50883303 also relates to section 42:

'31. In addition, she recognises that weight may be added to the above factors, in favour of disclosure, if the following issues are relevant in the particular case

:•large amount of money involved;

•whether or not a significant group of people are affected by the advice or resulting decision;

•lack of transparency in the public authority's actions;

•misrepresentation of advice that was given;

•selective disclosure of only part of advice that was given.'

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

M Boyce left an annotation ()

Thanks J Roberts. I do appreciate your informed and supportive comments.

The ICO changed from information not held to vexatious because they know that tribunals nearly always agree that requests are vexatious.

The ICO say there is no wider public interest in knowing about inconsistency of legal approach to section 42 FOIA. This is not true. They say that the issue has been 'comprehensively concluded'- read: shut-down by the ICO.

The ICO's legal approach is inconsistent, and that is that as it it there for all to see, and they just want to bury this issue under the accusation of vexatious request from a vexatious requestor. I will vigorously challenge it because the request is not vexatious and I am not vexatious.

J Roberts left an annotation ()

'It is my view that this request was not primarily intended to obtain information about the ICO or to achieve fulsome answers to legitimate questions but was intended to continue the harassment of ICO staff and repeat your dissatisfaction with, and criticism of, the ICO.'

From a recent judgment:

"11. ‘Harassment’ is a term with which statute law has had to deal. Section 1 of the Protection from Harassment Act 1997, for example, defines it as a course of conduct which a reasonable person in possession of the relevant information would think amounted to or involved harassment of another - an objective test and a pointer to the ordinary meaning of the word. It has also been judicially considered (see, for example, the recent summary at paragraph 44 of Hayden v Dickenson [2020] EWHC 3291 (QB)). The ordinary meaning is a persistent, deliberate, unacceptable course of targeted oppression. Where harassment by words is alleged, that must be tested against the legal protections for free speech, including Article 10 ECHR. ‘Abuse and harassment’, objectively considered, are strong factual allegations of serious interpersonal misconduct outside the boundaries of accepted everyday interactions."

Riley v Sivier [2021] EWHC 79 (QB)

https://www.bailii.org/ew/cases/EWHC/QB/...

'44. The principal cases on what amounts to harassment are: Thomas -v- News Group Newspapers [2002] EMLR 4; Majrowski -v- Guy's and St Thomas's NHS Trust [2007] 1 AC 224; Ferguson -v- British Gas Trading Ltd [2009] EWCA Civ 46; Dowson -v- Chief Constable of Northumbria Police [2010] EWHC 2612 (QB); Trimingham -v- Associated Newspapers Ltd [2012] EWHC 1296 (QB); [2012] 4 All ER 717; Hayes -v- Willoughby [2013] 1 WLR 935; R -v- Smith [2013] 1 WLR 1399; Law Society -v- Kordowski [2014] EMLR 2; Merlin Entertainments LPC -v- Cave [2015] EMLR 3; Levi –v- Bates [2016] QB 91; Hourani -v- Thomson [2017] EWHC 432 (QB); Khan -v- Khan [2018] EWHC 241 (QB); Hilson -v- Crown Prosecution Service [2019] EWHC 1110 (Admin); and Sube -v- News Group Newspapers Ltd [2020] EMLR 25. From these cases, I extract the following principles.'

https://www.bailii.org/ew/cases/EWHC/QB/...

Hayden v Dickenson [2020] EWHC 3291 (QB).

J Roberts left an annotation ()

In relation to EIR (Commissioner's guidance):

'15. For regulation 12(5)(b) to apply to legally privileged information, the public authority must demonstrate that disclosure of the requested information would have an adverse effect on the course of justice.'

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

IC-42833-D0G5 (not upheld)

'19. ... the communications must be confidential, made between a client and professional legal adviser acting in their professional capacity and made for the sole or dominant purpose of obtaining legal advice.

21. Having viewed the withheld information and referred to the council’s submissions the Commissioner is satisfied that the information is subject to LPP and that it therefore falls within the scope of the exception.'

Did the Commissioner view the withheld information in all of the DNs you are interested in?

The Commissioner's view on LPP:

'22. Whilst the Commissioner accepts it is not a foregone conclusion that the disclosure of privileged information would adversely affect the course of justice; she considers that there would need to be special or unusual factors in play for this not to be the case.'

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

IC-45168-M6N1 (not upheld):

'44. The Commissioner recognises that care should be taken to ensure that freedom of information principles do not undermine the well-established common law right to LPP, which enables a client to put all relevant facts before their legal advisers, and to receive advice based on them, without fear that either facts or advice will be disclosed to others without their consent.'

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

IC-42403-G9P5 (not upheld):

'44. The complainant states that disclosure would be in the public interest in order to establish whether their “plausible suspicions” were correct, or alternatively to allay suspicions and restore faith in the council.'

49. ... Nevertheless, she also recognises there might be circumstances where the public interest will favour disclosing the information.

55. The Commissioner understands the crux of the complainant’s case is that disclosure is required in order to establish whether the council’s approach to parking enforcement is unlawful. However, it is the Commissioner’s position that determinacy of the credibility of such accusations is beyond the remit of the FOIA.

57. The evidence presented is not sufficient to outweigh or override the inbuilt public interest in the information remaining protected by LPP.'

Always reassuring to see a reference to evidence!

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

M Boyce left an annotation ()

Thanks J Roberts, I will be using some of the information you have helpfully researched in my appeal to the Tribunal.

M Boyce left an annotation ()

Ohhh bingo.

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

Here we go again... the ICO repeating their illegal 'very exceptional' argument. The last few DN's on section 42 were adamant that the 'ICO believes that arguments DO NOT have to be very exceptional.'

The ICO condemns and tries to silence anyone who calls out their approach as inconsistent and plainly unfair - vexatious request and smeared vexatious requestor!

M Boyce left an annotation ()

My response to the ICO.

Please find below my amended response to the ICO's new exemption, section 14 FOIA. I will not waste my time on a detailed response here, but will save that for when the case goes to the First-tier Tribunal (FtT).

I have only made a few requests to the ICO on the specific topic of section 42 of the FOIA.

I maintain that the ICO's position in relation to section 42 and the 'exceptionality/non-exceptionality' argument is both inconsistent and contrary to the law. Notably in a recent ICO DN dated 15/01/21 the Commissioner again asserts that for disclosure to occur there needs to be 'very exceptional circumstances'. This contrasts with a number of ICO DN's and it contrasts with the FtT's ruing that such an assertion is 'not the correct rule' - contrary to FOIA legislation.

I have accused the ICO of incompetence and law-breaking because of this inconsistent approach. These accusations are simply not unfounded, despite your protestations that they are.

I have never and will never publicly name the caseworker in my case.

My persistence on this serious matter is not unreasonable and is not intransigent.

My few requests on this subject do not represent an unjustified level of disruption. It asks for a very small amount of readily accessible information.

If my requests have caused irritation and distress, then this is unfortunate, but with the clear evidence of wrongdoing (inconsistency and not using the correct rule) then any distress and irritation must surely be justified.

We have all suffered under the current pandemic. The ICO staff have the luxury of working from home; I work on a building site and do not have such a luxury.

The provision of the requested information will resolve the matter. I will state in writing now that I will not make any further FOIA requests on the same subject matter.

If the correspondence so far has been futile, then that is because the ICO has refused to address the central inconsistency of its approach.

You state that the requests serve no serious purpose in terms of the public interest. I completely disagree. There is a serious purpose in knowing about the ICO's inconsistency of approach and rule/law breaking, especially as the ICO is the very organisation tasked with overseeing the FOIA. In short, there is a public interest in knowing whether the ICO has a consistent/ law-abiding approach to the legislation it deals with.

Your original exemption stated that you did not hold the requested information. Now in your new exemption you state that divulging the requested information would not be feasible. This is yet another example of serious inconsistency of approach. I believe you have now switched to section 14 exemption because it offers the ICO a greater chance of success, and not because it is the right or fair thing to do.

You state that DN's issued by the ICO undergo 'a robust quality checking procedure'. Then why does the most recent DN on section 42 still assert the 'very exceptional' argument', when some previous and recent DN's claim this is NOT the ICO's approach, but only 'some authorities'?

I categorically refute your accusation of a vendetta and the targeting of individual ICO staff: it is completely untrue.

In your response you state that:

'We note that you have previously displayed this pattern of behaviour [vexatious] in relation to OTHER public authorities' - note the plurality. You then go on to detail a request sent to the Parliamentary and Health Service Ombudsman and subsequent tribunal decision. This incontrovertibly shows that you regard ME and not the request as vexatious. This is contrary to your own published guidance and it is contrary to the spirit and the letter of the FOIA. It is THE request to the ICO that you should be looking at, and not going on a fishing expedition to find examples of alleged vexatious requests to other authorities. This is yet another example of the ICO's inconsistency of approach, and it very clearly exposes your hypocrisy by constantly doing the opposite of what you preach.

You state that 'the appropriate route for you to challenge the interpretation of section 42 of the FOIA is via the Information Tribunal.' And that is what I intend to do in this case. It is however worth pointing out that the ICO itself does publish its own guidance on section 42 FOIA and it is quite explicit in that guidance that circumstances do NOT have to be exceptional, let alone very exceptional, for disclosure to occur.

When I refer to 'you', I am referring to the ICO.

I await your prompt response so that I can swiftly proceed to tribunal.

J Roberts left an annotation ()

Thanks for posting this. I fail to see how the Commissioner could mistake your determination to unearth the truth about her interpretation of section 42 (a matter of considerable public interest) for harassment.

Good luck!

J Roberts left an annotation ()

Something else on harassment:

'102. The language deployed is certainly not understated, as befits perhaps the nature of the medium [Twitter], but it cannot fairly be described as a campaign of harassment. The only reasonable inference is that the Defendants were exercising their rights of free speech against someone whose activities they believed merited being placed in the public domain. There is no tenable basis for concluding that the Defendants may have been animated by motives separate from a bona fide journalistic enterprise, even if that enterprise may have misguided or a substantial number of untruths were published, as to which no judgment can fairly be made at this stage.'

Soriano v Forensic News LLC & Ors [2021] EWHC 56 (QB) (15 January 2021)

https://www.bailii.org/ew/cases/EWHC/QB/...