ICO contravention of section 42 of the FOIA

M Boyce made this Freedom of Information request to Information Commissioner's Office

This request has been closed to new correspondence. Contact us if you think it should be reopened.

The request was refused by Information Commissioner's Office.

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. 

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If there is anything you would like to discuss with us, please call our
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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

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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
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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.
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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

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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/...

M Boyce left an annotation ()

Thanks J Roberts for this information.

I am not harassing the ICO, I am just trying to find out what is going on. They know that simply mentioning this word to the First-tier Tribunal will guarantee success and shut-down all legitimate enquiry into their manifest inconsistency and rule-breaking.

M Boyce left an annotation ()

The ICO are going to publish their decision notice (DN) on this case in about a week or so. It relies on section 14 vexatious.

They have made a monumental error in this DN by basically saying that all their DN's are signed-off by the more senior staff at the ICO - therefore that there is no inconsistency in approach to section 42 FOIA because they are all apparently singing from the same 'expert' hymn sheet.

Well, sadly not.

In paragraph 54 of the DN which I received yesterday it states exactly:

54. 'When the ICO issues a decision notice, it must be signed by a senior official who has been delegated the power to authorise such decisions on behalf of the Information Commissioner. Whilst a decision notice may have been drafted by any of the FOIA complaints handlers [case workers] at the ICO, the decision is the decision of the person who signs on the Commissioner's behalf..'

All well and good you may think, but then....

Back in March of 2020 I was in correspondence with the ICO on this very issue and received an email that stated the following exactly:

'...I can advise a number of years ago due to the delays in decisions being signed off and the growing backlog, it was agreed the Senior Case Officers (SCO) could sign off their own decision notices.'

And if anyone doubts this they need only look at the published DN's on the ICO website, where a number are signed off by Senior Case Workers and not a more senior member of the ICO staff (Group Manager etc.).

This is of such significance because it goes to the heart of whether the ICO can be trusted in what they say and what they do. Trust is key.

The ICO will say that my exposing this further inconsistency is just me being vexatious, but if you want to shut someone up for exposing wrongdoing (and this is wrongdoing) in this country then section 14 vexatious is an authority's ace get out of jail free card.

J Roberts left an annotation ()

Your request is of the sort that would require very little effort to obtain the information; it's also one of considerable public interest. But it is strange that such a simple and straightforward request should be met with so much resistance.

'24. The fact that the Appellant seeks to find the ‘truth’ as to what happened does not seem to us to be an invalid reason for using the FOIA, as disclosure does have the potential of doing that.'

https://www.bailii.org/uk/cases/UKFTT/GR...

EA/2019/0363

M Boyce left an annotation ()

Thanks J Roberts.

I agree with what you say, and you are spot on with identifying the ICO's very strong resistance to divulging a very small amount of requested information.

I have told them I will not make any further FOI requests on this subject, and I will honor that commitment.

There is a clear problem with the ICO's communication and consistency of approach and that is undeniable.

What makes all this worse is that the ICO are not just any old authority, but they are THE authority on the FOIA. It is their very business, their bread and butter to recognise and, crucially address any inconsistency in the way the FOIA is being administered and employed.

But rather than simply address this issue and deal with it and resolve it for the benefit of everyone, they have chosen to completely ignore it and deny it.

This is not only very troubling, but it is very sad.

J Roberts left an annotation ()

'I have told them I will not make any further FOI requests on this subject, and I will honor that commitment.'

51. The Commissioner notes that DWP considers that complying with the current requests would encourage the complainant to continue making requests and that he is unlikely to be satisfied with any response provided. However, the Commissioner is not persuaded that this is an obvious conclusion from the evidence provided. The complainant has confirmed that he has submitted his case to a tribunal and the Commissioner considers that it is likely that the current requests are attempts to obtain information to prepare for this tribunal.

52. The Commissioner would however comment that, at times, the complainant's correspondence is uncivil and should the complainant continue to make requests on the same subject, the Commissioner may find that section 14(1)applies in the future. However, on the basis of the submissions provided for this case, the Commissioner is not persuaded that the high threshold for vexatious has been reached.'

FS50846703

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

M Boyce left an annotation ()

Yes J Roberts, as your link shows the threshold for describing a request as vexatious must be a high one and not just a way of avoiding providing important information.

Below is the further response I received from the ICO today:

'Yes, some Senior Case Officers have delegated authority to sign decision notices on behalf of the Commissioner. Sometimes this means that they will sign a decision notice they themselves have drafted, sometimes they will sign a decision notice drafted by a more junior colleague. Authority to sign used to be required from the Head of Department but this was devolved to Group Managers in mid-2019 - so it is correct to say that signing must be authorised by someone at Group Manager level or above.

Where a Senior Case Officer is signing one of their own decision notices, that notice must first be reviewed by someone of at least the same grade of seniority. Usually this will be another Senior Case Officer but sometimes it will be done by a Group Manager or one of the Commissioner's Principal Policy Advisors. I'm sorry that this was not made clearer in the decision notice.

I now believe I have gone as far as I can in addressing your concerns and attempting to resolve this matter in good faith. The Commissioner has now issued a decision and you have the right to appeal that decision to the Tribunal if you wish to do so. However, I will not be engaging in further discussion on this matter.'

None of this is consistent with what I was told previously. It is now abundantly clear that ICO DN's are NOT checked/reviewed by anyone - they are merely and quite literally just signed-off, either by the Senior caseworker who drafted the decision themselves or by a more senior member of the ICO. This signing-off is just that: a signature is applied to a document. Nothing more than that.

All this matters because it now shows that the ICO's 'ROBUST' quality control of its DN's is simply not robust at all.

Senior Caseworkers were given the authority to sign off their DN's because of the growing backlog of cases: this was purely to speed up the process. If some DN's were then reviewed by more senior staff, and now we are told by other Senior Caseworkers, this would then slow the process down again.

The quickest way of issuing DN's is not to review them at all, but just 'sign them off'. From the evidence I have received so far this appears to be the case.

Does anybody agree? This is important for anyone who uses the ICO.

M Boyce left an annotation ()

Does anybody know of any other ICO decision notices that use FOI requests to OTHER authorities on completely DIFFERENT subjects as evidence that a request is vexatious?

This is crucial because my case may well represent a dangerous new precedent from the ICO where they are clearly regarding ME as vexatious and not just the request.
In the future the ICO are very likely to find all alleged vexatious requests vexatious simply because they have found a previous request to another authority on another different subject to be vexatious.

In paragraph 45 of the DN to be published shortly it states:

'It [the ICO] has not suggested that the request is vexatious because a previous request to the PHSO has also been deemed vexatious. The ICO considers this request to be vexatious because it follows a strikingly SIMILAR PATTERN of behaviour.'

By their very nature ALL FOI requests allegedly deemed to be vexatious follow a SIMILAR PATTERN of behaviour - they have to do to be found allegedly vexatious.

J Roberts left an annotation ()

'The ICO considers this request to be vexatious because it follows a strikingly SIMILAR PATTERN of behaviour.'

Presumably, the PHSO has referred to the 'pattern' and the Commissioner is agreeing that there is one. But if there is a pattern, when did it start and why was it allowed to develop - a case of post facto reasoning, perhaps?

Let's assume a requester made two previous requests, each of which was found to be vexatious. The third request could not be deemed vexatious because his previous two requests were each vexatious. But on the basis that there is a 'pattern' his third request could be deemed vexatious. Mmm.

Has anyone got a constructive thought?

FS50632398

'43. The council should ensure that it takes into consideration the Commissioner’s guidance on dealing with vexatious requests particularly paragraph 12:

“It is important to remember that section 14(1) can only be applied to the request itself, and not the individual who submits it. An authority cannot, therefore, refuse a request on the grounds that the requester himself is vexatious. Similarly, an authority cannot simply refuse a new request solely on the basis that it has classified previous requests from the same individual as vexatious.'

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

M Boyce left an annotation ()

Thanks J Roberts.

The ICO are desperate to smear me as vexatious and they will try any trick to achieve it, including introducing the new trick of vexatious requestor.

When they publish the DN in the next few days I will demolish their arguments one by one for everyone to see.

The ICO will see this as vexatious, but it is not, it is merely me using free speech and a public forum to expose wrongdoing. The DN is quite simply wrong. Everything I say will be true and accurate.

Thanks for your email WH. You make some interesting points. Sadly, the ICO regard me as vexatious and nothing I say to them will change that. The vexatious card is their ace card and they are playing to win with it.

J Roberts left an annotation ()

Recent FTT decision (dismissed) that considered s42:

'6. The Parish Council response did not meet the procedural requirements of the tribunal and The council was directed to provide further submissions addressing the issue of whether it holds any information in whatever form including information it may considered to be legally privileged relating to the subject matter of Mr Kitchin’s request.

12. ...In DBERR the High Court that the tribunal has a duty to give significant weight to the interest in maintaining legal professional privilege as it was in the public interest for public bodies to receive disinterested and frank professional advice in making decisions and there was less likelihood that they would receive such advice if they knew that it was to be made public...

13. On the other side of the balance is something which objectively is a Mr Kitchin’s interest in his personal litigation which does not have wide implications. The request was made very soon after the hearing in of a claim of nuisance between two land owners one of which is a Parish Council.'

EA/2019/0381V

https://informationrights.decisions.trib...

J Roberts left an annotation ()

Recent FTT appeal (dismissed):

'12. Vexatiousness is not defined in section 14 FOIA, but it is immediately noticeable that it is the request that must be vexatious and not the person making the request.

17. The recent Upper Tribunal case of Cabinet Office v Information Commissioner v Ashton[2018] UKUT 208 (AAC) made clear that s14(1) FOIA can apply purely on the basis of the burden placed on the public authority, even where there was a public interest in the request being addressed and where there was a ‘reasonable foundation’ for the request.'

28. The Registrar struck out his appeal on 13 May 2020, but the Appellant asked for the application to be reconsidered.

29. On 25 June 2020, Judge Macmillandecided to set aside the decision to strike out and commented that:-

48. However, as set out above, it is necessary, to comply with the case law on s14 FOIA, to take a wider view of the request and to consider the situation holistically. When that is done the current request appears to us to be part of an ongoing effort by the Appellant, going back well over a decade, to make the Council accountable for perceived past and ongoing misdemeanours and malpractice.'

EA/2020/0091V

https://informationrights.decisions.trib...

M Boyce left an annotation ()

Yes it is immediately apparent that the First-tier Tribunal recognise that it is the request and NOT the requestor that can be considered vexatious.

The ICO SAY the same, but then DO the exact opposite.

M Boyce left an annotation ()

M Boyce left an annotation ()

Here's my skeleton argument that the request is not vexatious:

The ICO regard ME as vexatious, because they reference another case to another authority on another subject: the PHSO about their internal review process.

The ICO deny that there is any inconsistency in their approach to section 42 FOIA, and is not contrary to the law when the evidence proves the contrary: the law says absolutely nothing about the need for disclosure to be 'very exceptional'. You cannot just make up the law. The First-tier Tribunal have also repeatedly told the ICO that they are not using the correct rule. The ICO have ignored them.

The ICO say the request has no value or serious purpose. It has both. Knowing about any pattern of ICO law-breaking is in the public interest.

The ICO reference the history of the case by mentioning a 'successful' appeal to the Adjudicator's Office. This appeal was categorically NOT successful. The Report from the Adjudicator's Office stated this exactly:

'With regard to your complaint about the Tax Credit Office's contradictory guidance [with regard to backdating of tax credits]; I have NOT upheld this element of your complaint.'

NOT upheld, how much clearer could that be? And they go on to say why they did not uphold it in great detail (utterly wrongly, I might add).

Yet successive judges, including a High Court judge, and the PHSO all repeated the same incorrect thing: that my appeal WAS upheld. Wrong, wrong, wrong.

The ICO states that my request places an unjustified burden on the ICO; yet I have only submitted two small requests to them on this subject.

I have promised them in writing that I will not make any further FOIA requests to them on this subject. They say they don't believe me. I will honour my word.

The ICO say that simply using the WDTK site is evidence of my request being vexatious.

The ICO say that my criticising their very slow response to my request is evidence of vexatiousness, despite the fact that all ICO staff have been safely working from home.

The ICO at first said they did not hold the requested information, then changed that to not feasible to supply it, and then went for the vexatious card.

The ICO state:
'It is (to a certain extent) understandable that the complainant is frustrated by his battles with various authorities (although the Commissioner notes that these are largely battles that the complainant has brought upon himself).'

Well no-one else is going to do the battles for me, are they?

The ICO say that:

'Being constantly accused of acting unlawfully - especially in the absence of evidence - is beyond the robust criticism that public authorities should be expected to bear.'

Yes, how unbearable it must be for them to be criticised for very clearly breaking the law. They are breaking the law and the evidence could not be any clearer.

M Boyce left an annotation ()

The ICO's main argument that this request is vexatious is founded mainly on the false accusation that my appeal to the Adjudicator's Office (AO) had been upheld. This forms the crux of their argument and so I must flesh it out a bit.

Firstly, there can be no better way of smearing someone as vexatious that repeating (and getting others to repeat) the falsehood that the complainant is pursuing a request that had been previously upheld.
If it had been upheld then of course I would agree that pursuing the matter further could well be construed as vexatious. But that is NOT what has happened.

I complained to the Adjudicator's Office back in 2015 about the way the Tax Credits Office (TCO) (part of HMRC) were publishing inconsistent information about the backdating of tax credits. This arose because the TCO had refused me tax credits, but on appeal reversed that decision, paid me what I was owed, apologised and offered a small amount of compensation. I fully accepted this. But during my investigations I had discovered that their advice on backdating tax credits was seriously inconsistent and misleading.

I sent HMRC several FOIA's on this subject matter via WDTK, but they refused to supply the requested information.

I then appealed to the Adjudicator's Office, setting out the full background and asking them to investigate this inconsistent/misleading advice. I made it clear that I was content with the way the TCO had dealt with my case, but I was NOT content abut the general backdating advice given to the public. The AO acknowledged this fact in their Report, dated 6 July 2016, as follows:

'Your letter to this office covered your complaint about your own tax credit claim but you also wanted me to address your concerns that the TCO's published guidance and notes to customers were contradictory.

As you are now broadly SATISFIED [I told them I was] with the way the TCO have resolved your complaint we have concentrated our investigation on the nature of the TCO's guidance to those customers making a claim for Working Tax Credit.

My decision -

I have partly upheld your complaint because the TCO agreed they handled your tax credit claim badly. As they explained in their report, they will now pay you redress of £160. In my view, this is in line with their Complaints and remedy guidance.

With regard to your complaint about the TCO's contradictory guidance. I have not upheld this element of your complaint.'

So the AO chose to uphold something that had ALREADY been upheld by HMRC, and which I did not ask them to investigate or further uphold.
They did this because they know full well that a complainant who receives a partly upheld decision is far less likely to pursue the matter than someone whose complaint is wholly not upheld.
It is a cynical ploy and it did not work.

That is the background. But the mot serious issue is that successive investigators (judges and the PHSO) have just chosen to ignore the evidence. Why on Earth would I appeal a successful decision? The PHSO, an FTT judge, and even a High Court judge (my judicial review case on this subject) all state that my appeal to the AO was successful and that I had 'relief'. If that is what 'relief' looks like then what does frustration look like?

I have pursued this matter doggedly because I am right, and I am tenacious. The establishment want to defeat this by labelling me as vexatious. It is a disgrace.

In the final analysis: why would I logically be pursuing a successful appeal?

Just because the establishment repeats a falsehood over and over and over again this will not change it into being the truth.

M Boyce left an annotation ()

The ICO have accused me of being vexatious because I have accused them of repeatedly breaking the law.

In my submission to the FTT shortly I will not only be discussing the fact that the ICO have been breaking statute law (FOIA 2000, section 2(2)(b)), but, equally importantly that they have been breaking case law (precedent), as follows:

In High Court case of DBERR v O'Brien v IC [2009] EWHC 164 (QB) it states in paragraph 41:

'It is also common ground, however, that the task of the Tribunal, ultimately, is to apply the test formulated in section 2(2)(b) [FOIA 2000]. A person seeking information from a government department does NOT have to demonstrate that 'exceptional circumstances' exist which justify disclosure. Section 42 is not to be elevated 'by the back-door' to an absolute exemption...'

This is case law, and it is legally binding on the ICO and it is legally binding on the First-tier Tribunal. The ICO is not at liberty to choose to break the law as and when it feels like it, and purely on the preferences of which Senior Case Officer is dealing with a particular case.
The ICO does not sing from the same hymn sheet with regard to the law; it sings from a multitude of different hymn sheets. This is not fair and it is not legal and it has to stop

Does anybody read this differently?

J Roberts left an annotation ()

I agree with your interpretation. Had you been provided with the information requested, we would have had some indication of the 'spread' of 'exceptional circumstances' thinking among caseworkers. The judgment you refer to is from 2009, so I don't see how your request can be vexatious when the 'back door' is still open eleven years on.

Latest s42 FTT appeal (dismissed)

'3. She [the Commissioner] concluded that the exemption applied to the information(DN 21-26). In considering where the balance of public interest lay she noted:

“...there is a strong element of public interest inbuilt into the privilege itself. At least equally strong countervailing considerations would need to be adduced to override that inbuilt public interest”.

5.She noted that while there was some public interest in the advice the Council had received:-

"However, in this case, the Commissioner is not satisfied that there is a compelling reason for the disclosure of the information in question. In all the circumstances of this case, she does not consider that there are factors present that would equal or outweigh the strong public interest inherent in the exemption."'

https://informationrights.decisions.trib...

M Boyce left an annotation ()

Thanks J Roberts. I value your knowledgeable opinion.

The ICO have opted for the 'strong' option in the latest case on section 42, instead of the 'very exceptional'. Every case is different because the ICO is not consistent in its approach to the law, and they can shout and complain all they want that they are consistent - but they are not.

If someone says that black is white often enough, does that actually make it so?

M Boyce left an annotation ()

We should be able to trust that the ICO knows what it is doing and that it is doing it fairly and legally. But can we?

In my request here the ICO originally refused the request as information not held, then not feasible to supply, then the vexatious card.

Let's take a closer look at the information not held exemption.

In the above response the ICO state:

'We can confirm that we do not hold information in scope of your request.... A public authority is not required to create new information to respond to requests.'

Except, by the ICO's own analysis, it may be required to do exactly that. In the ICO publication: 'Determining whether information is held', it states:

'A public authority WILL hold information if it holds the building blocks required to generate it and no complex judgement is required to produce it.'

I asked for anonymous identifiers from the ICO. Names are the building blocks and no complex judgement is required to convert this information into anonymous identifiers.

No wonder the ICO decided to go for the not feasible and vexatious card.

All this hardly increases my trust in the ICO.

J Roberts left an annotation ()

Two FTT cases concerning 'building blocks'.

'30. We believe that, had HCC –or the Commissioner –followed that guidance, both HCC and the Commissioner would have concluded that the degree of skill and judgement needing to be applied to the ‘building blocks’ to provide the information Mr Gallagher requested was not such as to constitute the creation of new information.'

EA/2018/0267

https://www.bailii.org/uk/cases/UKFTT/GR...

See para 45 of EA/2018/0015:

https://www.bailii.org/uk/cases/UKFTT/GR...

M Boyce left an annotation ()

Thanks J Roberts for these interesting links.

They clearly show why the ICO in my case decided to jettison 'information not held' for the vexatious card instead.

I sent my appeal off to the Tribunal today, so I may get a decision in a year or five. Then if the vexatious card does not pay off for the ICO they can then go back to option 1 - information not held, and then back to the Tribunal for another year or five.

M Boyce left an annotation ()

If you make an FOI request to the ICO and it refuses this request then the ICO investigates itself. It magically splits into 'two' entities: the ICO and the Information Commissioner. They are of course one and the same entity. The ICO investigates the Information Commissioner, or the other way round - either way, they investigate themselves. The ICO or the Information Commissioner - take your pick - claim this marking their own home work is entirely fair and entirely proper. Well they would wouldn't they? But if you look at the eighty or so decision notices on the ICO website where they investigate themselves, not one substantive exemption is upheld in favour of the requestor - NOT ONE. Yes on appeal they occasionally uphold trivial time sections, like sections 1, 10 and 17, but NEVER substantive exemptions of the FOIA or the EIR.

Is it pure coincidence that an organisation that investigates itself NEVER finds substantively against itself?

Tim Turner left an annotation ()

It's worth saying that it's not just the Information Commissioner who says that their "marking their own home work is entirely fair and entirely proper". That's how the FOI Act works (ICO is both a public authority and a regulator). The ICO cannot unilaterally change this - if they passed investigations of themselves to someone else, those investigations wouldn't be valid and you couldn't appeal them to the Tribunal.

So whining about this on What Do They Know is pointless and implying that it's the ICO's fault is a false claim. Either you write to your MP and ask them to change the law (no government since 2000 has seen fit to make this change), or you accept it. In Scotland, you can send FOIs to the Scottish Information Commissioner but you can't then appeal them. There's no guarantee a campaign to resolve the issue you're complaining about won't result in that solution.

M Boyce left an annotation ()

I agree that serious flaws within the FOIA is not the ICO's fault. I also agree that the ICO is not unique in its marking of its own homework. But the point I was making (or whining about as you put it) is that the SYSTEM is not fair, and even more importantly, the ICO is not fair as it ALWAYS finds substantively in its own favour - and that is obviously their fault. No one is right 100% of the time - not me, not you and not the ICO, but the statistics show that the ICO are indeed right 100% of the time, as their grade A homework shows.

Tim Turner left an annotation ()

I'm not sure how well you expressed that point, but in any case, the system allows for appeals to the Tribunal. If ICO decisions on themselves are biased, they can at least be overturned. The Scottish system, as I mentioned, is worse.

M Boyce left an annotation ()

I don't know anything about the Scottish system, but if it's worse than in England and Wales then that's not good.

The point is there shouldn't be any room for bias in the FOIA. I don't believe that Parliament necessarily desired such bias, but it inexplicably legislated for it. It is obvious that if an individual or organisation is empowered to investigate themselves or itself then that investigation is ALWAYS going to be biased, especially when that individual or organisation faces well -founded accusations of wrong-doing - there is no getting away from that.

If the ICO wasn't inherently biased (inevitably in favour of itself and arguably sometimes in favour of authorities) then there might not be as much need to appeal to the First-tier Tribunal.

The 'remedy' of this unsatisfactory situation should be an appeal to the FTT, but tribunals have never recognised this inherent bias that is legislated into the ICO, and if they they don't recognise or understand this, then what else do they not recognise or understand?

Many complainants also don't want to take their case to a tribunal. They may find it too difficult, too expensive, too time-consuming, too stressful, or too privacy invasive (the FTT rarely affords anonymity, whereas the ICO always does).

M Boyce left an annotation ()

https://informationrights.decisions.trib...

In the O'Hanlon case above the Tribunal usefully interrogates the jurisdictional issue of the ICO being nemo iudex in casua sua (judge and jury unto themselves).

The Tribunal did recognise this 'unsatisfactory' issue, but was 'fortified' in paragraph 46 by the fact that the ICO is UNLIKELY to be biased.

I disagree: it is not unlikely that the ICO are unlikely to be biased in favour of themselves, but entirely inevitable.

If someone robbed a bank and the police then told that individual that they could investigate the case themselves, would it be UNLIKELY that that individual would find themselves not guilty?

The ICO will inevitably accuse me of being vexatious by discussing this important issue. The ICO is its own judge and jury and it knows that accusing someone of being vexatious will further fortify this iniquity.

Two wrongs don't make a right - just two wrongs, and when legitimate discussion is simply shut-down under the guise of vexatiousness then liberal democracy is in serious trouble.

M Boyce left an annotation ()

The Commissioner’s Response

'41. The Commissioner resists this appeal. Generally, the Commissioner relies on the
Decision Notice as setting out her findings and the reasons for those findings, together
with the ICO submissions, and repeats the matters stated therein. The Commissioner
nonetheless sets out below her observations in respect of the Appellant’s Grounds of
Appeal.

1) Vexatiousness by drift

42. In Oxford Phoenix v Information Commissioner [2018] UKUT 192 (AAC), the UT
discussed at [87] “vexatiousness by drift”, whereby a request or series of requests for
information that have an underlying justification lose that justification as they are pursued
intransigently, or with diminishing returns:

“I have set out above paragraph 68 of Lady Arden’s judgment in which she
emphasised the significance of the value of the information requested:
“important information which ought to be made publicly available”. The FTT’s
acknowledgment of Mr Levinson’s “genuine concerns about public health
issues” along with its description of the value to the NHS of the device in
question, shows that it was aware of the public interest dimension in this case
[…] However, it is important to acknowledge what was sought by the requests
with which this ground is concerned. They did not seek information about the
device or any matters directly related to public health. They sought information
about the MHRA’s handling of the file in question and its broader policies for
records management. […] The fact that there had once been a genuine dispute
does not stop a request becoming “vexatious by drift” (see Dransfield in the
Upper Tribunal). That is what the FTT decided here. In the FTT’s assessment,
Mr Levinson was using FOIA as a means of “carrying on the war by other
means”.”

43. The Commissioner submits that it is entirely appropriate to consider the wider relevant
course of dealings between the Appellant and the PHSO referred to above as a part of
a holistic assessment of the request. This includes correspondence that has occurred
after the date of the present request in so far as it sheds light on the Appellant’s approach
and actions at the time of the request. It would also not be right to consider the request
in isolation from materially relevant course of dealings on the grounds that those 20
dealings related to a separate public authority. This would be against the emphasis of
undertaking a holistic assessment that takes account of various factors, and the wider
course of dealings referred to above clearly demonstrates the pattern of the Appellant’s
course of dealings and why the present request is vexatious.

44. The Commissioner submits that the present request to the ICO, read in the context of
the wider dispute and other course of dealings between the Appellant and the ICO and
PHSO, is a clear example of vexatiousness by drift and is ultimately motivated by the
Appellant’s dissatisfaction with the Commissioner’s earlier decision notice which has led
to the appeal in EA/2019/0032, and even earlier complaints regarding HMRC. The
Tribunal is invited to consider the conclusion of the Tribunal in EA/2019/0334, and the
analysis contained therein, and note the similarity in approach that is now being
demonstrated in the Appellant’s course of dealings with the Commissioner, including the
various annotations on the WhatDoTheyKnow website which demonstrate a similar
pattern of harassing and derogatory behaviour, some of which are referred to in the
Decision Notice. As noted by the Commissioner in her Decision Notice:
“50. For many people in a similar position, such an outcome would be
satisfactory and the matter would end there. But the complainant was evidently
not satisfied with this outcome and exercised his right to ask a second
complaints-handling body (the PHSO) to investigate the first (the Adjudicator).
However, when the PHSO did not reach the conclusion the complainant
wanted, he began his “unjustified and obsessional campaign against the PHSO
which included a number of information requests. The campaign then
expanded to encompass a third complaints-handling body (the ICO) when the
complainant’s FOIA responses failed to achieve his desired outcome with the
PHSO.”

2) Purpose and Value

45. The Commissioner also submits that there is minimal purpose and value in this particular
request. The signatories to a decision notice are the individuals who bear responsibility
for the decision notices that they sign for the purposes of accountability. Typically this
will be a Group Manager but on occasion this can also be a senior case officer who
drafted the decision provided it is reviewed by another senior case officer. In either case
it is the signatory who is responsible for the decision notice that they sign.

46. The Appellant already has access to the Commissioner’s decision notices concerning
s.42(1) FOIA via her website, and is able to make his submissions concerning the
Commissioner’s approach to this exemption without the need for this request. Indeed he
has done so. The present request which focuses on targeting the case officer who
drafted the decision notice (as opposed to the signatory who bears the responsibility for
its contents in regard to accountability) is therefore not required and the request is simply
a vehicle by which the Appellant can continue to vent his grievance which, ultimately,
can be traced back to the Commissioner’s earlier decision notice in appeal
EA/2019/0032 which upheld the PHSO’s reliance on s.42(1) FOIA. Providing the
information requested would be unlikely to resolve matters, and the Appellant already
has access to the information needed to make his complaints.

47. Furthermore the Commissioner has explained in response to the Appellant’s
correspondence that it is her guidance concerning s.42 FOIA which sets out her
understanding of the exemption, and that each case is considered on its own merits. It
has also been explained that whilst some differences in terminology can be seen in
some decision notices, this does not mean that a different test has been applied in an
attempt to informally resolve this matter. Indeed this is supported by the fact that most
appeals against decision notices upholding the application of s.42 FOIA are dismissed
by the Tribunal, demonstrating that the Commissioner’s approach has been upheld.
Furthermore if any of the individuals in receipt of the decision notices referring to
“exceptional circumstances” did not consider the conclusion reached to be correct they
would have had the opportunity to appeal that decision to the Tribunal.

48. As a matter of practice it is uncommon for legally privileged information to be ordered
to be disclosed under FOIA. However this does not mean that the matter has not been
properly considered on its own merits, but rather that the strength of public interest in
preserving legal privilege is of such strength that it is often the case that there is
insufficient public interest in the information to override that public interest. It may be of
interest to note that the Commissioner recently ordered the disclosure of legal advice
that was withheld in response to a request, however this was subsequently overturned
on appeal by the Tribunal in Crown Prosecution Service v Information Commissioner
and Robin Callender-Smith EA/2019/0275.

2) Derogatory remarks

49. The Commissioner maintains that the tone of the Appellant’s correspondence often
demonstrates derogatory and demeaning language towards the ICO, and that being
constantly accused of acting unlawfully in the absence of evidence is beyond the level
of robust criticism that a public authority should expect. Whilst this tone is was not
sufficient in itself to render the request vexatious the Commissioner maintains that it
adds weight in favour of maintain the exemption. This also further supports the position
that the motive of the request was in fact primarily intended to use the request to act as
a vehicle to continue the harassment of ICO staff and repeat his dissatisfaction with, and
criticism of, the ICO.

G. Conclusion

50. The Upper Tribunal in Dransfield held that:
“In this context it is important to bear in mind that the right to information under
FOIA is a significant but not an overriding right in a modern democratic society.
As has already been noted, it is a right that is qualified or circumscribed in various
ways. Those restrictions reflect other countervailing public interests, including
the importance of an efficient system of public administration. Thus section 14
serves the legitimate public interest in public authorities not being exposed to
irresponsible use of FOIA, especially by repeat requesters whose inquiries may
represent an undue and disproportionate burden on scarce public resources. In
that context it must be relevant to consider the underlying motive for the request.
As the F-tT observed in Independent Police Complaints Commission v
Information Commissioner (EA/2011/0222) (at paragraph 19):
“Abuse of the right to information under s.1 of FOIA is the most
dangerous enemy of the continuing exercise of that right for legitimate
purposes. It damages FOIA and the vital rights that it enacted in the
public perception. In our view, the ICO and the Tribunal should have no
hesitation in upholding public authorities which invoke s.14(1) in answer
to grossly excessive or ill-intentioned requests and should not feel
bound to do so only where a sufficient number of tests on a checklist
are satisfied.”

51. The Commissioner submits that the present request is such an abuse of the right to
information under FOIA. The Appellant is already able to raise his concerns regarding
the terminology used in some of the Commissioner’s decision notices regarding s.42(1)
FOIA by reference to the public versions of the decision notices and the named
signatory. The targeting of specific case officers, even in anonymised form, is not
necessary and is of very limited public interest.

52. Furthermore the request is a clear example of “vexatiousness by drift”. There is a clear
similar pattern of behaviour that the Appellant has demonstrated against the PHSO, and
is now pursuing against the ICO. The Commissioner submits that the present request is
simply a continuation of his grievances against the PHSO, and the Commissioner for
upholding the PHSO’s position in appeal EA/2019/0032. Read in this context, and given
the frequently derogatory language used, the request is clearly vexatious.'

The ICO makes no mention of the crucial question of the burden on the ICO - only the burden on the PHSO!

The request does not show 'vexatiousness by drift'. It has not drifted from the same subject matter, just focused in on it.

The ICO's quality checking of its DN's is a shambles and is deeply inconsistent and misleading.

The ICO state that they are not breaking the law. They are, and that is that.

M Boyce left an annotation ()

We need to be able to trust the ICO, but can we?

The Commissioner assures us that all her decision notices are 'made' by their signatories and not by their draftees. These signatories can be Senior Case Officers or they can Group Managers, and even very senior members of ICO staff such as the Principal Policy Adviser, Gerrard Tracey.

The Principal Policy Adviser has been in this role for over ten years, and so we might expect that he is very familiar with ICO published Guidance (he probably wrote it) and with the law regarding the FOIA. But is he?

Let's take a look at one of 'his' decision notices (he is the signatory and therefore the putative author of this DN), decision notice FS50794284, GMC, dated 17 July 2019.
This concerns section 42 of the FOIA and in this DN the Principal Adviser at the ICO states that for disclosure of legal advice to occur there 'must be very exceptional circumstances.'
But this is not what the published ICO Guidance on section 42 states at paragraph 54. Is the Principal Adviser unaware of this?
This is also contrary to many FTT decisions that clearly state this stance is the incorrect rule/law. Is the Principal Adviser unaware of this?
This is also contrary to statute law on the FOIA. Is the Principal Adviser unaware of this?
This is also contrary to case law on the FOIA. Is the Principal Adviser unaware of this?

Who has 'made' this DN: a Senior Case officer or the ICO's Principal Policy Adviser on the FOI? Whichever it is, the buck stops with the Principal Adviser, as he has signed-off the DN.

Are these reasonable questions to ask or should anyone asking them be silenced by way of being accused of being vexatious?

The ICO has a stated commitment to transparency, as laid out in its 'Case Work Guide'. Is this commitment being honoured?

J Roberts left an annotation ()

Who has 'made' this DN: a Senior Case officer or the ICO's Principal Policy Adviser on the FOI? Whichever it is, the buck stops with the Principal Adviser, as he has signed-off the DN.'

I find it difficult to believe that the Principal Policy Adviser would not have noticed the use of 'very exceptional' in the DN. Unfortunately, we never get to know the number of complaints withdrawn because complainants have been misled into believing that the correct standard is 'very exceptional'.

You have identified a matter of substantial public interest and your request has been labelled vexatious by drift. Having clarity on how the ICO deals with LPP is objectively important, especially when the Principal Policy Adviser is implicated in such a questionable interpretation of the law.

Latest edition of the Equal Treatment Bench Book (Feb. 21):

https://www.judiciary.uk/wp-content/uplo...

Litigants in Person (from page 11)

M Boyce left an annotation ()

Thanks J Roberts.

The 'Equal Treatment Bench Book' makes for interesting reading, though it's so substantial I didn't know whether to read it or bench press it.

As I uncover more and more about what is going on at the ICO they are predictably fortifying the barricades. Brick walls are not renowned for being transparent, open and communicative.

My substantive case EA/2019/0032 has now been with the Tribunal for 26 months and the developing issues above with the ICO are inextricably linked to it. Every month I am told that the case will finally be decided, but the months and years keep rolling by. I have been in regular communication with the administration staff at the GRC asking them to finally update the published current case list. I have been promised that this update will occur by this April 8th. This will allow me and others to see how other cases are progressing with the FTT.

If the Tribunal do eventually find in favour of the ICO I will appeal it to the UTT, and will ask the Upper Tribunal for a definitive determination on section 42 and the 'very exceptional circumstances' issue. This should clarify the issue for the PHSO, the ICO and everybody else. The law, or the 'terminology' as the ICO calls it, finally needs to be made clear.

Clarity and consistency will be beneficial for the public, if not for public authorities.

J Roberts left an annotation ()

The table showing GRC appeals says it was last updated in September 2020, but the latest case it shows is dated 6 March 2020:

https://www.gov.uk/government/publicatio...

Presumably, no appeals were received between March and September because of Covid.

The sooner there is clarity concerning s42 the better. I am not aware of any appeal to the GRC having taken so long as yours to decide. I look forward to reading it.

M Boyce left an annotation ()

Quite a few cases were received between March and September, and most of the GRC staff have been working from home, so they have been able to continue working.

I was repeatedly told that the current case list could not be updated because the system kept 'falling over'. Their words, not mine. It is not clear why it kept falling over or who or what is was falling over! But, I told them that after more than a year it had to stop falling over and someone needed to get this sorted out.

I agree that the section 42 FOIA issue needs resolving without much further delay and I shall again chase-up the progress, or lack of it, on appeal EA/2019/0032 this week.

M Boyce left an annotation ()

Well, despite the GRC First-tier Tribunal REPEATEDLY assuring me that they were going to update the published current case list (last updated over 13 months ago), that has not happened.

I have informed them that I will be contacting my MP and the Chamber President at the GRC about this. It is completely unacceptable that the GRC are ignoring this important matter.

J Roberts left an annotation ()

Your MP might be able to find out why what seems like something easy to do has not been done. Could an FOI request be made for the information? It may exist.

M Boyce left an annotation ()

Yes I think a freedom of information request is the best way to proceed here.

Her Majesty's Courts and Tribunals Service (HMCTS) are subject to the FOIA, although they only deal with issues of administration and not the law.

If the GRC (Information Rights Tribunal) do not voluntarily provide the long promised information by the end of tomorrow then I will make an FOI request to HMCTS (an authority included on WDTK). The request will ask for a list of all undecided appeals currently with the GRC and the dates at which these appeals were received at the GRC.
I know they hold this information and they will not be able to continue to withold it.

M Boyce left an annotation ()

Information request now sent to HMCTS.

They will almost certainly try and refuse this request as vexatious, on any and every excuse they can think of; so off to Tribunal I will go again.

M Boyce left an annotation ()

I will today be contacting the Chamber President at the GRC to ask for a legal clarification from a judge on the issue of what can and cannot be SHARED with others.

On 27 October 2020 the Upper Tribunal in appeal GIA/779/2019 ruled in paragraph 41 that:

'Firstly, he argues that as a litigant in person he could share the bundle with family and friends means that there has been publication to the world in any event. I disagree - there is a world of difference between such informal consultation and publication of material on the web..'

And then in paragraph 43:

'The Upper Tribunal's Order is that the Second Respondent [a litigant a person] may not publish the electronic documents and bundles..'

That seems fairly clear: no publication of the DOCUMENTS. But what about DISCUSSION of those documents? Is this permitted? What about sharing/discussing those documents without publication?

I my appeal EA/2021/0064 the ICO's solicitor states the following:

'I would like to take this opportunity to remind the Appellant that the CONTENTS of the Open bundle are CONFIDENTIAL to the parties to the appeal and not for onward TRANSMISSION AND DISSEMINATION. A breach of this implied undertaking can be considered contempt of court.'

So, how does the ICO's prohibition accord with that of the Upper Tribunal?

Clearly, the ICO are telling me that if I were to share the documents, or the contents of these documents( which can include their meaning), with friends or family then I would be in contempt of court.

And what about DISCUSSION of these documents without publishing the documents themselves?

It is ultimately ironic that the very organisation (the ICO) that is tasked and empowered to effectively uphold information rights is now working to undermine freedom of speech for those with no power and no money.

This is a clear attempt to close-down freedom of speech in this country.

It is time for proper legal clarification on this vital issue as it profoundly affects freedom of speech for us all. If judges decide to close-down freedom of speech, let them say so explicitly.

J Roberts left an annotation ()

"'I would like to take this opportunity to remind the Appellant that the CONTENTS of the Open bundle are CONFIDENTIAL to the parties to the appeal and not for onward TRANSMISSION AND DISSEMINATION. A breach of this implied undertaking can be considered contempt of court.'"

What does the Commissioner mean by 'transmission'?

i. 'cause (something) to pass on from one place or person to another''; or

ii. 'broadcast or send out (an electrical signal or a radio or television program)'.

https://www.google.com/search?q=transmit...

'Disseminate' means to 'spread (something, especially information) widely'.

https://www.google.com/search?q=tdissemi...

DVLA v Information Commissioner and Williams (Rule 14 Order)[2020] UKUT 310 (AAC):

'21. On any sensible construction that principle would permit a party to share documents disclosed in the course of legal proceedings with their legal adviser, but not to publish the material to the world with a view to soliciting advice from as yet unknown individuals who may or may not be legal professionals and may or may not be subject to professional codes of ethics. The genesis of the implied undertaking doctrine was explained by Jackson LJ in Tchenguiz v Director of the Serious Fraud Office[2014] EWCA Civ 1409 ...'

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

I don't think a 'legal adviser' needs to be a solicitor or a barrister. But what if the person assisting a litigant were to transmit and disseminate the information?

For anyone interested in the dissemination of information regarding legal matters more generally, here is something Jo Maugham of the Good Law Project has tweeted:

'Mr Mills’ threat was marked “Strictly Private and Confidential. Not for Publication or Dissemination” but I don’t think these threats to sue on matters of public interest should be made behind closed doors. So I am publishing his letter with my reply.'

https://goodlawproject.org/news/they-wan...

M Boyce left an annotation ()

You make some excellent points J Roberts. There certainly needs to be a full explanation from a judge about what can and what cannot be shared and why, and about what can and cannot be DISCUSSED and why.

On a different topic, the GRC have today provided me with a 'current' case list for appeals. This is now supposed to be published on their website on Wednesday 21 April, but it is very confusing so I wouldn't bank on it. One fact that does appear to be clear on the spreadsheet is my appeal EA/2019/0032 is at the very bottom of that list of cases waiting to be determined, excepting those that have been stayed.

J Roberts left an annotation ()

Sadly, any WDTK user seeking information/advice from fellow users about a live case is in a difficult position. Judge Wikeley refers to the 'possibility' of appellants receiving free representation. A sticking plaster will do little for a gaping wound.

'40. ...

"The request that the Upper Tribunal provide Mr Williams with a lawyer

11. The Upper Tribunal has no power (or resources) to provide Mr Williams with a lawyer. It is entirely a matter for him, but Mr Williams may wish to explore the possibility of obtaining free representation at any future hearing from an organisation such as the Bar Pro Bono Unit (www.weareadvocate.org.uk) (although I understand they require a referral from another agency) or a specialist lobby group such as the Campaign for Freedom of Information, which has experience of appearing before the Upper Tribunal in FOIA / EIR cases.”'

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

I saw your request concerning GRC appeals. It will be good to see the information due to be published.

' GRC cases for hearing week beginning 19 April 2021

Updated 16 April 2021'

https://www.gov.uk/government/publicatio...

M Boyce left an annotation ()

The chance of an ordinary Joe obtaining pro bono legal advice is virtually nil.

The Upper Tribunal ruling only states that DOCUMENTS in the core bundle may not be PUBLISHED. It says nothing about DISCUSSION of any of these documents.

And what happens after an appeal has been determined? Would a litigant in person be prevented from ever discussing, or even mentioning, any of these documents in the future?

The more you drill down into this issue the more Orwellian it becomes.

Remember that the ICO have told me that I cannot transmit or disseminate (discuss) the CONTENTS (whole or part) of the bundle. This prohibition extends far beyond publication. At its logical extreme that means that I cannot even talk to a friend about the gist or meaning of a particular document or issue in the bundle - even a document that I have created myself!

The CONTENTS of a bundle mean much more than just the actual physical documents of a bundle - it extends to the meaning of those documents.

If someone reads a book and then publishes an ANALYSIS of the contents of that book, is that tantamount to them publishing that book? No, it is not.

What about an appellant's own submissions that form part of that bundle, such as their grounds of appeal?

The ICO are suggesting that I cannot discuss with anyone anything I have said in my grounds of appeal.

New ICO decision notices and tribunal decisions are published regularly and these sometimes raise similar issues that I have already raised in the bundle. According to the ICO I am also not allowed to make any comment on these cases if such comment would include discussion of anything I had said in the previous bundle.

The ICO are trying to stop those without recourse to expensive lawyers from getting any assistance with their case whatsoever, and they are trying to stop people discussing/uncovering Establishment wrongdoing. It is the Establishment wanting to muzzle the little people.

If judges want to do the same then they need to say so.

That is why this very important issue needs definitively addressing.

M Boyce left an annotation ()

'30. The Panel accepts that there is inevitably some prejudice in material being
withheld from a party requesting it, but considers that this prejudice is mitigated by:

(a) The Tribunal’s expertise, and exercise of an investigatory rather than
adversarial function;

(b) The Commissioner being an INDEPENDENT, expert regulator who does NOT
take sides. On the contrary, the Commissioner’s role is to point out the
strengths and weaknesses of both parties’ cases in assessing the correct
application of the law and regulations;'

The above is taken from appeal EA/2020/0033 published on the FTT website today.

I nearly choked to death on my Coco Pops when I read this.

How can an organisation be INDEPENDENT from itself?

The ICO is often tasked with investigating the ICO - who it refers to as the Commissioner - et voila - the ICO magically transforms into two INDEPENDENT entities.

Sleep tight folks, and don't have nightmares!

We are further assured that the Commissioner, or the ICO, or Mickey Mouse, or any other nom de guerre that takes their fancy, does not take sides.

So we are to believe that the ICO would take someone else's side against their own side. Mmm.

The Tribunal assures us that the ICO points out both its own strengths and weaknesses. Yes, of course it does... it is simply that the rest of us have not seen this yet!

That reminds me, I must make an appointment with the opticians so that I can clearly see the INDEPENDENCE of the ICO.

J Roberts left an annotation ()

Judge Marks' view is one many appellants would not share. Here is a link to the case:

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

Here is a case in which the Commissioner's independence was questioned::

'35. We do note however that the document refers to the Commissioner’s conduct during the appeal and in particular, it seems, to the practice of the Commissioner of obtaining information from a public authority during the investigation of a complaint and production of a decision notice without sharing the information obtained with the Appellant or seeking comments before the finalisation of the decision notice.

36. We note the Appellant’s concerns in this respect.'

https://www.bailii.org/cgi-bin/format.cg...

Regarding this recent request to the ICO relating to the purchase of luxury chocolates - https://www.whatdotheyknow.com/request/2... - if anyone dealing with it was the recipient of a box could they be said to be independent?

Given the distinction made between the ICO and the Commissioner when it comes to investigating complaints about itself, might not a gift of expensive chocolates (gifts may include expensive alcoholic drinks*) compromise anyone investigating the complaint?

ICO Gifts and Hospitality policy

'Therefore, you should not receive benefits of any kind from a third party which might reasonably be seen to compromise your personal judgement and integrity, or the judgement and integrity of the ICO.'

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

* Alcoholic drinks available include: Cacao Gin, Salted Caramel Vodka, Chocolate Creme Liqueur, Prosecco, Expresso Creme Liqueur, Chateau Chocolate Red Wine. and Cocoa Beer

https://www.hotelchocolat.com/uk

J Roberts left an annotation ()

Here is a DN you may wish to read:

IC-49371-N7T5

Crown Prosecution Service

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

'78. The Commissioner considers that the concept of LPP does not extend so far as to cover communications of that type. The mere fact that a piece of correspondence has been sent by or to a professionally qualified lawyer does not render the correspondence as privileged. In many of the trails the CPS was only one of many organisations which were copied into the correspondence and therefore the Commissioner cannot accept that these chains reflect a client-advisor relationship.

79. Therefore, with the exception of the correspondence already identified, the Commissioner does not consider that the information attracts LPP and therefore section 42 is not engaged.

90. The Commissioner therefore considers that the CPS is entitled to rely on section 42 to withhold the information specified in the confidential annex.'

M Boyce left an annotation ()

Thanks J Roberts.

Appeal EA/2020/0091 shows that the ICO is biased against appellants by not sharing information that should be shared with them.
I've experienced this myself with the ICO, and this is on record.

The ICO should never accept gifts from any party as this could also imply bias.

In the latest ICO DN on section 42 FOIA (13 April 2021) the ICO TWICE demonstrate that the 'extreme exceptionality' argument that they often employ is totally wrong.

The FTT case EA/2020/0033 is very important in that it states that the ICO is always INDEPENDENT.

This is demonstrably incorrect. In the appeal of Liam O'Hanlon v iCO (EA/2017/0032) the judge discusses the issue of ICO bias at some length. Notably in paragraph 33 he states:

'....It does not matter whether the Commissioner would be ACTUALLY biased when dealing with a complaint against her own decision: Under public law APPARENT bias is enough to condemn a decision...'

And in paragraph 36:

'...Where the public authority is anyone other than the Commissioner she can provide INDEPENDENT adjudication. When she is the public authority, she CANNOT do so...'

The ICO also implicitly admit this bias themselves.

In every DN where the ICO is both the judge and jury to their own decision they state in the preamble to their DN's:

''''She is therefore under a duty as a regulator to make a formal determination of a complaint made against her as a public authority. It should be noted, HOWEVER, that the complainant has a right of appeal against the Commissioner's decision.''

This 'HOWEVER' admission is only given in cases where the ICO is both the regulator and the investigator of herself.

This clearly shows that the ICO themselves fully recognise that they are NOT and CANNOT be independent and are necessarily BIASED against an appellant.

In the final analysis Parliament did legislate for this, at least apparent, bias to occur. There is no getting away from this fact. But, it is deeply worrying when the FTT do not recognise this fact by stating that the ICO is always independent and never biased.

You start with an assumption like that and it can only lead in one direction: the Commissioner's decisions are always correct.

Tim Turner left an annotation ()

Assuming that the Tribunal is saying that the ICO is independent and unbiased, the conclusion you come to here is still wrong. A person can be entirely objective and still make the wrong decision. The Tribunal plainly doesn't think that the ICO is infallible, because under both FOI and Data Protection, different permutations of the Tribunal overturn ICO decisions. If they thought that the ICO was always correct, how could that ever happen? The ICO had a huge loss at the Tribunal on the Ticketmaster case only a week or so ago, and even this week, they found that the ICO had erred on an FOI / EIR case (albeit on a technicality). It's a flawed system, but not to the extent you're suggesting.

M Boyce left an annotation ()

Yes you make an entirely fair point: someone can be completely objective, but still get things wrong. The point I was making, maybe pushing a bit too far, was that if the FTT believe the ICO are always independent and never take sides then this at least shows a lack of judgement. When the ICO investigate themselves they will always lack independence and they will always take sides - their side.

J Roberts left an annotation ()

Judge Wikeley uses the phrase 'disinterested third party' to describe the Commisioner's involvement in DVLA v Information Commissioner and Williams (Rule 14 Order) [2020] UKUT 310 (AAC):

'11. The Information Commissioner – who, in a sense, is holding the ring in the substantive appeal as a disinterested third party–takes the following view:

“ ... the Commissioner’s understanding is that the contents of the hearing bundles before the Upper Tribunal are only open to the parties to the proceedings (unless closed under Rule 14) and not for onward disclosure or dissemination other than for use in connection with the proceedings, such as obtaining legal advice. The Commissioner has not understood it to be permissible to unilaterally publish such bundles, or indeed correspondence relating to the proceedings, online."'

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

The understanding of the 'disinterested third party' is clearly unhelpful to the interests of unrepresented appellants.

Meaning of 'hold the ring':

'Monitor a dispute or conflict without becoming involved in it.

‘"the judge is there to hold the ring impartially and to direct the jury on the law"'

https://www.lexico.com/definition/hold_t...

In Brace v Information Commissioner and Merseyside Fire and Rescue Authority [2019] UKUT 305 (AAC), at paragraph 24, Judge Wikeley cites Judge Rowley regarding the principles governing FTT (GRC) costs:

'10. The general principle is that the FTT(GRC) is a costs-free zone.

...

26. ... Tribunal proceedings should be as brief, straightforward and informal as possible. And it is crucial that parties should not be deterred from bringing or defending appeals through fear of an application for costs.'

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

The DVLA decision (supra) may not only deter unreprested appellants from bringing appeals, but it may also turn some of those who do into sitting ducks. Is not an unrepresented appellant's use of the internet to seek much-needed assistance and advice, at least indirectly, in accordance with the 'cost-free zone' principle of the FTT (GRC)?

The words of Mr Justice Nicklin are apt:

'5. ... It will be a rare case in which a legally trained and skilled opponent, acting for a well-resourced client, will be unable to pick holes in a litigant in person's statement of case.'

Ward v Associated Newspapers Ltd [2021] EWHC 641(QB)

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

Tim Turner left an annotation ()

@J Roberts: I don't want to put words in your mouth, but are you suggesting that the ICO's job should be to take the side of the applicant because they're unrepresented?

If that's the case (and I might have misunderstood you), again, I disagree. It's the ICO's job to make decision based on what the applicant and the public authority say. Quite a lot of applicants make a poor job of this, demanding that ICO do things they can't do, or look at matters outside the FOI request. That's why a good number of complaints fail.

Even when the applicant makes a good case, ultimately the case officer has to make a decision which may be to agree with the authority: FOI has a lot of exemptions and the public interest isn't always served by disclosure. S42, for example, has a very strong in-built argument against disclosure; I think I remember rightly that the House of Lords thought it should be an absolute exemption, and given that common law confidentiality is an absolute exemption, that would have made sense.

In any case, once the decision is made, that's the position ICO takes to the Tribunal unless something new comes to light. The ICO's role definitely should be as a disinterested third party, and arguing for their decision at Tribunal in any particular case doesn't make them biased. They shouldn't help or side with the applicant (or the authority). They should work out what they think the right answer is, and the Tribunal gets to decide if they agree. The unrepresented applicant is always at a disadvantage, but that's the reality in every court or tribunal that exists.

M Boyce left an annotation ()

The ICO are about as much a 'disinterested third party' when they are both the authority and the adjudicator as a rabid dog is. They will fight to win at all costs, regardless of the facts and the evidence.

Tim Turner says:

'In any case, once the decision [decision notice] is made, that's the position ICO takes to the Tribunal unless something new comes to light.'

Yes, but the problem is that the ICO often then continue to defend their decision notice even when new evidence that condemns their decision is presented. I speak from experience.

It is certainly crucial that the FTT remains a 'costs-free zone.' The threat of litigants in person being found in contempt of court for discussing their case is also not particularly encouraging.

A litigant's use of the internet is essential and I have certainly found it to be so.

Today the FTT published a decision on appeal EA/2020/0224.

In paragraph 20 it states:

'..If the decision notice contains an error of law, the FTT MUST allow the appeal and MUST substitute the notice.'

Houston, we have another problem.

In my appeal EA/2019/0032 the DN states the 'very exceptional argument' with regard to section 42 FOIA. In at least another three FTT decisions the Tribunal have clearly stated that this approach is contrary to the law. Yet, rather than allowing the appeals and substituting the decisions, the Tribunal chose not to do so!

Appeal EA/2018/0214 (Daniel Edwards V ICO) is a case in point. The Tribunal may still not have found in favour of disclosure of the legally privileged information, but they should irrefutably have nonetheless allowed the above appeal and made a substituted DN because of this error of law in the DN.

Tim Turner left an annotation ()

@M Boyce

If you speak from experience, what new evidence did you present to the ICO after they issued their Decision Notice? Give me a concrete example.

M Boyce left an annotation ()

It is my understanding that the documents in the core bundle cannot be published. At this moment I am waiting to hear from the GRC Chamber President as to what can and what cannot be discussed in connection with these core documents. I will post on here what the judge says about this matter.

In summary, I sent the ICO documents after the issuance of the DN which proved what the ICO had previously asserted was wrong. The ICO maintained its position.

I have no intention of publishing these documents now, but after the FTT has made a decision on my appeal that may be a different matter.

J Roberts left an annotation ()

Tim Turner,

I did not mean that the ICO ought to take the side of unrepresented applicants. My point was to elucidate the difficulties faced by unrepresented appellants who can't use the internet to get the advice and assistance that they need. My comment included this:

"The understanding of the 'disinterested third party' is clearly unhelpful to the interests of unrepresented appellants."

Was this the part that influenced your thinking?

J Roberts left an annotation ()

M Boyce,

Some cases you may be interested in:

'11. The Commissioner argues in her Response to the appeal that ‘the Appellant does not appear to contest that s38(2) is engaged. He must
therefore agree that the safety of individuals would be likely to be endangered by disclosure of the withheld information’. It seems to us that this is an unfair assumption to make: the Appellant has not had sight of the material upon which the FCO bases its reliance on the exemption, and he is therefore not in a position to say whether or not individuals would be likely to be endangered by the confirming or denying that the information is held.'

Kinsey v IC and The Foreign and Commonwealth Office EA/2017/0283

https://www.bailii.org/uk/cases/UKFTT/GR...

'41. The Home Office and Information Commissioner argued that the costs burden described in the Decision Notice was fully supported by Mr Reynolds’ evidence...

43. In these circumstances we have serious reservations about the reasonableness and accurac yof the cost estimate. It seems to us that the information requested could have been searched for in a much more straightforward manner with a consequential reduction in the quantity of material needing to be reviewedfor possible exempted information. Our concerns are not alleviated by the information about the withheld information set out in the Confidential Annex to Mr Reynolds’ witness statement.'

CRUELTY FREE INTERNATIONAL v IC EA/2017/0105

https://www.bailii.org/uk/cases/UKFTT/GR...

'25. In my view the Decision Notice uncritically embraces the estimate and brief supporting calculations from the University. This appears to be tacitly acknowledged by the Commissioner in his Response where it is stated:'

Sandy v IC and University of Arts London EA/2016/0040

https://www.bailii.org/cgi-bin/format.cg...

On a topical note related to disclosure:

'Amongst many jaw-dropping paragraphs in the Sub-postmasters' appeals is this gem. Document not to be disclosed "because it might assist the defence."'

https://mobile.twitter.com/Barristerblog...

M Boyce left an annotation ()

The ICO is always biased towards itself - obviously, and these cases show that the ICO is also sometimes biased in favour of other authorities.

On a slightly unrelated issue, the GRC has still not published its updated current case list. They have sent me a copy, but there are a number of errors in this. I will chase this up next week.

M Boyce left an annotation ()

Today I received a case management hearing date for what can and what cannot be discussed in appeal EA/2021/0064.
That date is 25 June 2021.

Whilst I appreciate the Tribunals initiative, it is not likely to be particularly helpful for several reasons. Firstly, the hearing is two months away, and then any decision from that hearing could also take many more months beyond that. Both the ICO and myself want this case to proceed as expeditiously as possible, but this timescale militates against that. The case could be decided before the
information sharing hearing takes place!
Secondly, what am I supposed to do for the next likely to be at least three months? Say nothing to anyone as dictated by the ICO?

No, I need at least come clarification before then.

The Tribunal have not told me I cannot discuss my case with anyone. The ICO have threatened contempt of court if I discuss my case with anyone - on who's authority?

I will try and get some clarification as soon as possible, as I am not prepared to be silenced for what might be six months or more and the case may well have been decided then anyway.

J Roberts left an annotation ()

'The Tribunal have not told me I cannot discuss my case with anyone. The ICO have threatened contempt of court if I discuss my case with anyone - on who's authority?'

Something from DVLA v Information Commissioner and Williams (Rule 14 Order)[2020] UKUT 310 (AAC):

'41. Mr Williams asks the rhetorical question, which he answers himself: “If I had published, upon what cause of action could I be (successfully) sued?None”. It is not for me to pronounce on hypothetical civil litigation. I will simply say that I am grateful to Mr Williams for the responsible way in which he has held back from publication pending resolution of this matter. However, I must make the point that were he now to act in breach of the Order I have made in this case then he is at risk of being found to be in contempt.'

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

Something on the Commissioner's lack of independence:

'36. The problem arises from the fact that the Commissioner has a dual role under FOIA: she is both, for the purposes of section 3(1) and schedule 1, a public authority to whom requests for information may be made, and also the determiner of complaints brought under section 50 by disappointed requesters. Where the public authority is anyone other than the Commissioner she can provide independent adjudication. Where she is the public authority, she cannot do so, however objective the staff dealing with the complaint seek to be and whatever systems are put in place to ensure separation between those who made the original and internal review decisions and those who deal with the new complaint.'

https://www.bailii.org/uk/cases/UKFTT/GR...

M Boyce left an annotation ()

I have asked the ICO to explain the legal basis for their threat of contempt of court if I discuss my appeal. So far there has been no reply.

If the ICO do decide to sue me then they will be deeply disappointed: I have no money and no assets, so the only thing they will get will be the shirt of my back.

One Tribunal states that the ICO cannot be independent if it is both the authority and the determiner of a complaint, and another claim that it is independent. How can it be?

UTT Appeal GIA/779/2019 decided that documents in the core bundle could not be published on the internet. Does this apply to all cases? I don't think it does, as each case is case specific. I would never publish the whole bundle anyway, but I have published some documents in the past. i would never reveal things like emails or addresses and things like that.

The GIA/779/2019 case discussed the principle of open justice: justice should be as open and transparent as possible, and that is what I want. Nothing more than that.

I am not asking for legal advice; I am just wanting to shine a light on the failures of the justice system. By 'justice system' I include the PHSO, the ICO, the FTT, and the High Court. As an example, I have discussed at some length the failure of the High Court to look properly at all the evidence in my judicial review case. The ICO repeatedly use this failure as an attempt to vilify me as vexatious. I want to show that this behaviour is wrong and unfair and open justice should allow this.

The ICO do not like it when the light of open justice is shone on them.

Let's see if the ICO do get back to me to explain the legal basis for their threat. I wouldn't bet on it.

J Roberts left an annotation ()

'If the ICO do decide to sue me then they will be deeply disappointed...'

I think the ICO is less interested in your money than in your silence. If costs were awarded against something similar to the following might unfold:

'Appendix A

In the Commissioner’s analysis it appears that your unwillingness to accept the Court of Appeal’s judgment, your failure to comply with the outstanding costs order made against you and your repeated and continued use of derogatory and defamatory language is clearly indicative of your refusal to engage in a meaningful, responsible and civil manner with the statutory and the judicial process provided for by Parliament under the Act.
...
In all the circumstances, accepting such applications from you under section 50 of the Act would, in the Commissioner’s view, risk harming the reputation of both the Commissioner’s office and the legislation she regulates. It would amount to an inappropriate use of the ICO’s resources and it would be incongruous to continue to accept applications from a complainant under section 50 of the Act when that individual has singularly refused to comply with an adverse costs order arising from earlier litigation arising from a decision notice issued under section 50 of the Act.'

Dransfield-v-Information Commissioner (Section 50(2): Jurisdiction)[2020] UKUT 346(AAC)
https://www.bailii.org/uk/cases/UKUT/AAC...

You have shone a bright light on the activities of the ICO, the PHSO and the FTT regarding the handling of your information requests and complaints. An appeal you lodged with the FTT regarding a request to the PHSO (July 2018) has still not been decided:

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

M Boyce left an annotation ()

Whether Mr Dransfield is right or wrong, and whether his methods are right or wrong, he has undoubtedly been a powerful advocate for information rights. I admire his tenacity.

I agree that the ICO (and the PHSO) desperately want me to be silenced, as their failures have been progressively exposed in an increasingly bright light.

The arguments I have made are actually much more than arguments: they are concrete statements of fact.

The PHSO review process is not legally allowed for, and they have no power to employ it.

The ICO's section 42 extreme exceptionality argument is contrary to both statute and case law.

The law is the law. The ICO wrongly refer to the law as mere 'terminology' when it suits them.

The FTT Tribunal are wrong to assert that the ICO is independent when it is investigating itself.

To paraphrase Dickens' 'Hard Times': 'Facts, facts, facts.'

Tim Turner left an annotation ()

Mr Dransfield's "tenacity" resulted in only one thing: failure. He lost his landmark vexatious case, and succeeded only in ensuring that public authorities can refuse FOI requests. It's odd to admire someone who was so spectacularly unsuccessful in his stated goal. He was one of the few people to get kicked off this website, and his legacy is a case that bears his name, but is a complete rejection of the arguments he put forward.

It's also worth noting - as someone who has received many angry and abusive emails from Dransfield - that he is an aggressively misogynistic and homophobic man.

J Roberts left an annotation ()

M Boyce,

'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.'

(Annotation of 19 January 2021)

'I will refer your offer of a secondment to our HR Dept who may be in contact with you to obtain further details.'

(email sent by the PHSO to the ICO on 4/12/20)

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

Could an ICO secondee have been involved in the PHSO's change of heart? Are genuinely vexatious requests really difficult to spot on a first reading?

D Moore has requested information about the secondment offer here:

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

Have you seen DN IC-45662-G8F3?

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

It's with the FTT.

M Boyce left an annotation ()

Tim Turner,

I admire Mr Dransfield's tenacity, but certainly not all of his methods; just as I admire Margaret Thatcher's tenacity, but certainly not all of her methods. Tenacity can be a virtue, but I do agree that not having the full facts of the Dransfield case, this admiration MIGHT be at least partly misplaced.

What I can say with certainty is that my tenacity is not misplaced. Of course I would say that, but it just happens to be true.

I utterly condemn any misogyny, homophobia and any form of prejudice. Most of us can be somewhat intemperate at times, but there is never any justification for such prejudice and outrageously offensive behaviour.

J Roberts,

'Could an ICO secondee have been involved in the PHSO's change of heart?
Are genuinely vexatious requests difficult to spot on a first reading?'

I don't know, but it is certainly possible, and deeply worrying if the case.

The ICO's change of heart is pure opportunism, and they know it: they play to win, not to adjudicate fairly.

Melville B Nash (Account suspended) left an annotation ()

Why would a potential secondment to the PHSO from the ICO have influenced the ICO deciding that you’re vexatious?

To be honest I get the sense that you care a lot more about the ICO than they care about you and your little crusade.

M Boyce left an annotation ()

It's not that little, Melville.

M Boyce left an annotation ()

Because the ICO investigate the PHSO and the PHSO investigate the ICO. How impartial is that example of mutual back-scratching?

You're quite right: the ICO couldn't care less about my concerns about their failures and non-legal behaviour.

Perhaps they should.

J Roberts left an annotation ()

M Boyce,

Have you seen this FTT decision?

EA/2019/0290P

https://informationrights.decisions.trib...

'5. The remaining live issue for this appeal is whether the Trust can rely on section 42 FOIA to withhold specific information. The Commissioner did not consider this exemption in her decision, and does not have power to do so at this stage in the proceedings (Information Commissioner v Malnick and ACOBA[2018] UKUT 72 (AAC)). This is a matter for the Tribunal to decide.

7. ... and any public interest in disclosure is minimal, particularly given the disclosure of large amounts of information previously withheld. The advice remains relevant and has implications for the Trust’s ongoing legal position.

28. ... The appellant has already been provided with the vast majority of the information she had requested...

30. We therefore find that the Trust is entitled to rely on the exemption under section 42 FOIA to withhold the Withheld Information which is within the scope of the Request.'

M Boyce left an annotation ()

No I had not seen the decision.

It's interesting that the ICO did not consider section 42 FOIA.

Public interest in my appeal is significant because so little information has been disclosed, and most importantly what has been disclosed is entirely contradictory.

J Roberts left an annotation ()

It is indeed interesting that the Commissioner did not consider s42. It is briefly mentioned in paragraphs 11, 17, 19, 21 and 23 of the DN. It's also interesting that the Commissioner provided no explanation as to why she did not consider it:

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

From the FTT decision:

'The Commissioner’s second response says that the Trust has correctly applied section 42.'

The question then arises: when did the Commissioner have sight of the information withheld under section 42? Had she sight of it at an early stage but didn't bother considering it, or did she ask for it only after the DN was published?

M Boyce left an annotation ()

The Commissioner supposedly 'cannot withdraw or AMEND a decision notice after issue.'

But in practice it often does EFFECTIVELY amend a DN if it goes to FTT appeal. The ICO use the standard line of 'we rely on the DN.... BUT' argument and then go on to change or amend their reasons and reasoning in their subsequent responses.

The ICO must have had sight of the legally privileged information from the start. It chose not to discuss this in its DN, but then did so in its second response.

it appears to be the case that the ICO are not supposed to introduce new exemptions post issuance of the DN - but they do often introduce completely new and often contrary arguments in the responses to the FTT.

It would now appear that the FTT would have given the ICO a draft of its decision for their approval and comment. The FTT also cannot have not read the ICO's responses on section 42 - and something read cannot then be unread.

The whole ICO FTT relationship just gets murkier and murkier.

The ICO routinely effectively amend their DN's if they go the FTT. This is contrary to their own published guidance.

The FTT APPEAR, on the evidence so far, to be routinely issuing their draft decisions to authorities and the ICO to approve. Litigants in person are denied such access.

J Roberts left an annotation ()

Here are a few paragraphs from cases that refer to the relationship between the Commissioner and the FTT:

31. As is well established, the FTT stands in the shoes of the Information Commissioner and its proceedings are inquisitorial. The FTT’s task is to determine whether a public authority has complied with its obligations under FOIA. In some cases the outcome will affect not only the immediate parties to the appeal. It is both a normal and desirable feature of such proceedings that a party is able to amend its position where that assists the FTT to reach the correct conclusion.

AL v ICO,The FCO andThe National Archives (GIA)[2020] UKUT32(AAC)

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

'De novo' powers

24. There is then a further right of appeal to the F-tT under section 57 whereupon the F-tT has jurisdiction to decide, de novo on the merits, whether the decision of the Information Commissioner is “in accordance with the law”: see section 58. This judgment following this rehearing generates the findings of fact from which any other challenge must spring.

Willow v (1) Information Commissioner (2) Ministry of Justice [2017] EWCA Civ 1876
https://www.bailii.org/cgi-bin/format.cg...

'55. It should be said, however, that an unsatisfactory consequence of the nature of the Tribunal’s de novo jurisdiction is that the content of the Commissioner’s procedural duties is never determined: the Tribunal can always cure a procedural error which she makes. It is hoped that when the opportunity arises the Upper Tribunal will give guidance on the procedure adopted by the Commissioner.'

EA/2018/0152

https://www.bailii.org/uk/cases/UKFTT/GR...

M Boyce left an annotation ()

'It is both a normal and desirable feature of such proceedings that a party is able to amend its position where that assists the FTT to reach the correct conclusion.'

Yes, but this cannot extend to the ICO's decision notice. That cannot be amended.

It is also worth noting that when an appellant makes an appeal to the FTT they are appealing the ICO's decision notice, and not the ICO's subsequent responses. Equally, the FTT's decision is a decision on the lawfulness or otherwise of the ICO's decision notice ONLY, and not any subsequent changes of mind within their subsequent appeal responses.

It does seem ridiculous that the ICO cannot amend its decision notice - it is presumably functus officio at the issuance of its decisions. If it could it might save a lot of unnecessary appeals to the FTT, thus saving much time, money and stress.

M Boyce left an annotation ()

And GIA/447/2017, paragraph 70:

'When the nature of the Commissioner's role under section 50 is properly understood, it is clear that she is functus officio when she issues a decision notice.'

So a change of mind may well be desirable, but it is not legally possible. Not that such a legal impossibility would stop the PHSO from amending its decisions, even though it is also functus officio on the issuance of its final decision. A fact the ICO turns a blind eye to.

J Roberts left an annotation ()

Here is a link to the Malnick decision you have referrred to:

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

IC v 1. Malnick; 2. ACOBA [2018] UKUT 72 (AAC)

Judge Oliver referred to Malnick in the case we have previously discussed (5/5/21):

https://informationrights.decisions.trib...

'5. The Commissioner did not consider this exemption in her decision, and does not have power to do so at this stage in the proceedings (Information Commissioner v Malnick and ACOBA [2018] UKUT 72 (AAC)). This is a matter for the Tribunal to decide.'

Is the following a polite way of saying that the Commissioner got it wrong?

'4. e. The Commissioner’s first response accepts that the Decision Notice should be modified.'

M Boyce left an annotation ()

The article titled: 'Draft judgements to be circulated with caution' on Panopticonblog contains the following:

'The Tribunal, however, circulated its draft judgement to the parties (OTHER THAN THE REQUESTOR).'

And

'The circulation of judgements in draft form is, OF COURSE, not uncommon.'

Why can't the requestor see the draft judgement if the other parties get to see it? I would never accept this as fair practice.

Well, OF COURSE, circulation of draft judgements is not uncommon! Well, I'm sorry, but it's still new to me.

I've no problem with drafts being circulated to ALL parties - but excluding the requestor is just a really bad joke - except I'm not laughing, and because of it I probably won't accept the final decision as fair.

J Roberts left an annotation ()

If the decision is not in your favour, then the PHSO may try to 'bullet-proof' it against further appeal. If the decision is in your favour, then the PHSO has the opportunity to try to change the judge's mind. On its face, it is unfair that you have not received a copy.

Here is something I found:

'Altering draft judgments: is that your final answer Your Honour?

...

There is much case law where this practice has been discouraged; not least so as to not create uncertainty or disrupt the finality of judgment. Email correspondence sent directly to the judge without being copied to the other side has been heavily criticised as inappropriate and the court was very concerned about the appearance of “closed door justice”.'

http://disputeresolutionblog.practicalla...

I've requested information from HMCTS about the matter:

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

M Boyce left an annotation ()

Thanks J Roberts, the link makes for interesting reading.

In my case the judge is very likely to repeat that I can't see the draft because it might contain privileged information. From what I understand, the PHSO (and maybe the ICO) are being asked to check the draft for accidental disclosure of privileged information. This may not sound unreasonable, but as I've said it does throw up very real problems. In summary:

The PHSO will inevitably procrastinate and just sit on the draft. This case has already been with the Tribunal for 27 months; if the PHSO have their way it will be with it for another 27 months.

The PHSO will inevitably say that almost nothing in the final decision should be disclosed to me: if nothing is disclosed, then nothing can be revealed. The PHSO told the Tribunal that the FOIA is not there to provide people with useful information. I'm increasingly beginning to think they are right.

The PHSO and the ICO lawyers will inevitably already be working out their strategies of defeating any appeal possibilities I may have with the UTT. They have two luxuries I don't have: lots of money and lots of time.

In the final analysis, open justice or natural justice rests on a legal process being as transparent as possible, and for all parties to be treated fairly. Would the PHSO or the ICO be happy if I had received the draft decision for comment and amendment and they had been excluded from the same? The tax-payer would be forking out for some very very expensive lawyers faster than you could say third home in the Caribbean.

M Boyce left an annotation ()

The judge today stated the following:

'The open and closed decisions were sent to the Respondents on 7 April 2021 before promulgation, in accordance with normal procedure.

The PHSO's response included an equivocal comment, which it has been asked to clarify by 12 May 2021.'

So it seems that it is 'normal' procedure to let the Respondents see and comment on the draft decision, whilst excluding the requestor. I'm not at all happy with this.

No wonder the ICO repeatedly refused to let me know if they too had been privy to the decision. Openness and transparency? Yeah right.

The chances of the PHSO responding by tomorrow is virtually nil.

Needless to say I'm not very optimistic about the decision.

J Roberts left an annotation ()

You are perfectly entitled not to be happy about it - the 'normal procedure' excludes you.

Normal procedure elsewhere involves both parties. For example:

'On 9 December, in accordance with its usual practice, the Supreme Court circulated its draft judgment in the case under strict embargo to the parties and their legal representatives, including Mr Crosland.'

https://www.gov.uk/government/news/heath...

Practice Direction 40E - Reserved Judgments

'3.1 Unless the parties or their legal representatives are told otherwise when the draft judgment is circulated, any proposed corrections to the draft judgment should be sent to the clerk of the judge who prepared the draft with a copy to any other party.'

https://www.gov.uk/guidance/the-civil-pr...

M Boyce left an annotation ()

Just a quick update on Appeal EA/2019/0032. It has, as expected, been dismissed by the Tribunal.

i cannot copy that decision here now, but it will be published shortly on the FTT website.

I will, for what it is worth, be making an appeal to the UTT, which will include the following points:

The Tribunal stated that the PHSO sent them very little relevant information - all the emails and the external legal advice was all irrelevant, and the Tribunal did not bother to ask for this information.

The Tribunal 'rejected' the ICO's 'very exceptional argument' but stopped well short of saying that it was error of law. It was a clear error of law and the Tribunal should have allowed the appeal at least because of this.

In the conclusion the Tribunal state that the PHSO and the ICO made representations to the Tribunal on the draft decision as to what should and should not be disclosed to me. This is contrary to the principle of open justice and it condemns the Tribunal's decision.

The Tribunal process has now been proved to be utterly unfair: it fails to request crucial information when this has failed to be provided; it fails to address clear errors of law; and it fails to provide a fair and open process for appellants.

J Roberts left an annotation ()

M Boyce,

I think the FTT decision you referred to here (9/6/21):

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

needs mentioning on this thread too:

"12. In this case the substratum of the information request relates to the circumstances in which PHSO can investigate possible maladministration by the Pensions’Ombudsman. The limits of the scope of PHSO to investigate another Ombudsman is a matter of public interest. While the advice may be old and applicable in limited circumstances it has been incorporated in general guidance to staff of PHSO as being a matter of general applicability in appropriate circumstances and not related to an individual case. It therefore appears to be a statement of the law defining when a citizen can have access to redress. In the circumstances of this case the question of transparency to a citizen as to their rights outweighs the need to protect legal professional privilege."

https://informationrights.decisions.trib...

The appealed DN:

Reference: IC-45662-G8F3

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

"14. The Commissioner notes that it is recorded on the document that is being withheld that its author was a (former) Legal Advisor and its owner is a Legal Advisor. The document includes a discussion of the relevant legislation, what is in and out of remit in respect of the PHSO and the Pensions Ombudsman and a summary. The document was written in 2008 and, while the Commissioner has noted the PHSO’s view on this (below), she considers that the advice the document contains was still ‘live’ at the time of the request, and currently, in that it may well be drawn on in the future.

19. ... The Commissioner has not been presented with any argument in favour of disclosure which is sufficiently strong to overturn the protection that LPP requires..."

J Roberts left an annotation ()

M Boyce,

Something you might like to read concerning harassment:

McNally v Saunders [2021] EWHC 2012 (QB)

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

Particulars of Claim struck out.

http://thesandwellskidder.blogspot.com/

M Boyce left an annotation ()

The case you have linked to shows that the bar for 'establishing' harassment is a very high one in the High Court. This contrasts with the ICO and section 14 FOIA were the bar is incredibly low - even the slightest and totally justified criticism of a public authority and their wrong-dong is enough for the ICO to condemn a request as vexatious or manifestly unreasonable. The ICO was created to turn the FOIA into the ROIA - the Refusal of Information Act.

I don't regard my entirely justified criticism of the ICO and their non-legal behaviour as harassment, but the Establishment almost certainly will.

The Establishment will always work to crush freedom of information and the uncovering of wrongdoing among its own.

J Roberts left an annotation ()

Recent s42 case (appeal dismissed):

'31. It seems to us important to clarify how the public interest balance should be assessed in cases where the exemption in s42(1) FOIA is involved. Although the Appellant has relied heavily on the Mersey Tunnel case, that is a first-tier tribunal case and, as we have said, is not binding on us. We think it is important to concentrate on the approach set out in the DBERR case which is a High Court case which is binding upon us and post-dates the Mersey Tunnel case by two years (2009).'

Murray-Smith v IC
EA/2021/0039V

https://informationrights.decisions.trib...

M Boyce left an annotation ()

The Murray-Smith v IC (EA/2021/0039V) case contrasts quite starkly with my case (EA/2019/0032). Both involve section 42 FOIA.

In the Murray-Smith case it states:

'We think that it is important to concentrate on the approach set out in the DBERR case which is a High Court case which is binding [IN ITS ENTIRETY] upon us....'

The Tribunal in my case just decided to cherry-pick the bits of DBERR that it liked and then chose to completely and repeatedly reject the most crucial bits (and pivotal in my case) that it didn't like.

In the Murray-Smith case the public authority clearly states that they believe their actions to be legal based on the received legal advice.

In my case the PHSO have publicly declared that their review process is not legal, but they refuse to say whether this conclusion is based on their received legal advice or not.

So in my case we have a Tribunal that just cherry-picks the law and that refuses to address an authority's self-declared law-breaking.

I am little less than happy about this.

J Roberts left an annotation ()

I can see why you are a little unhappy about it.

Here is a Consent Order concerning s42:

'1. The appeal is allowed and the Commissioner’s Decision Notice of 30 March 2021 Ref. IC-49770-T5Q7 is substituted to record that:
...
d) The Police Service for Northern Ireland was not entitled to rely on s.42(2) FOIA in respect of the remaining parts of the request.
...
6. On reviewing the matter on appeal the Commissioner concluded that confirming whether or not information is held within the scope of the remaining requests to which s.42(2) FOIA had been applied would not reveal legally privileged information.'

https://informationrights.decisions.trib...

The DN:

' 53. In this case whilst the Commissioner has recognised the public interest in favour of provision of the confirmation or denial, she does not believe that this is of sufficient weight to outweigh the in-built public interest in favour of the maintenance of LPP. Her conclusion is, therefore, that the public interest in the maintenance of the exemption outweighs the public interest in disclosure. PSNI was not, therefore, obliged to confirm or deny whether it held information falling within the scope of the parts of the request it was applied to.'

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

M Boyce left an annotation ()

Yes this case shows that time and time and time again the ICO treat the Freedom of Information Act FOIA) as the Refusal of Information Act (ROIA).

The ROIA is the raison d'etre of the ICO: it is the reason it was created and it is reason that sustains it.

M Boyce left an annotation ()

/informationrights.decisions.tribunals.gov.uk/DBFiles/Decision/i2930/EA-2021-0064%20Mr%20M%20Boyce%20v%20ICO%20-%20Decision.pdf

M Boyce left an annotation ()

Some brief comments on the above FTT decision.

The FTT slammed the ICO for its attempt to use 'vexatiousness by drift'.

The FTT considers that anyone that does not agree with the ICO is necessarily vexatious. ????

The FTT says my request has no serious purpose and no value. Wrong.

The FTT says that my motive is to disrupt the ICO. This is slanderous and unfounded nonsense. I want to hold the ICO to account, not to disrupt them. What would be the point of trying to disrupt them? I am not 12, and have never had any inclination to lie down in front of a lorry. The FTT's scurillous accusation is repellent.

Sadly I cannot challenge the FTT on finding of the 'facts', but I can and I will challenge them on their profound error of law. In paragraph 27 of the above decision it states:

'...the appellant is persistent in making serious accusations that the ICO is deliberately breaking the law. He says it is true, but there is no evidence of this.'

Oh yes there is, and the FTT knows it full well.

I have repeatedly said that the ICO are breaching section 42 of the FOIA. The evidence for this is clear:

DBERR v O'Brien v IC [2009], in paragraph 41 it states:

It is also common ground, however, that the task of the Tribunal, ultimately is to apply the test formulated in section 2(2)(b) [FOIA]. A person seeking information from a government department does NOT have to demonstrate that 'exceptional circumstances' exist which justify disclosure. Section 42 is not to be elevated 'by the back-door' to an absolute exemption.'

This could not be any clearer, and yet the FTT just choose to ignore this binding case law. Why? They wll be forced to address this at the Upper Tribunal.

M Boyce left an annotation ()

Appeal to the FTT for the FTT decision EA/2021/0064 –

Ground one – Failure to have regard to material evidence and failure to give effect to binding case law.

The FTT denies that there is any evidence that the Information Commissioner is deliberately breaking public law (statute law and case law).

In paragraph 27 of the FTT’s decision notice, and under the subheading of Any harassment of, or distress caused to, the public authority’s staff it states that:

‘….the appellant is persistent in making serious accusations that the ICO is deliberately breaking the law. He says it is true, but there is no evidence of this. The serious accusations underlying the Request are likely to have a disproportionate effect on staff members….’

I am not and have never suggested that the ICO are breaking criminal law. My argument is that they are breaking public law by not adhering to the case law of DBERR v O’Brien v IC EWHC 164 (QB), as in paragraph 41 of that case where it states:

‘It is also common ground, however, that the task of the Tribunal, ultimately is to apply the test formulated in section 2(2)(b). A person seeking information from a government department does not have to demonstrate that ‘exceptional circumstances’ exist which justify disclosure. Section 42 is not to be elevated ‘by the back-door’ to an absolute exemption.’

The FTT in decision EA/2021/0064 have ignored this crucial evidence and this represents a material error of law.

In the First-tier decision MR M BOYCE v THE INFORMATION COMMISSIONER AND PARLIAMENTARY AND HEALTH SERVICE OMBUDSMAN (PHSO), EA/2019/0032, it states at paragraph 89:

‘However, we reject the view expressed by the Commissioner in paragraph 16 of the Decision Notice that only in very exceptional cases can the inbuilt interest in LPP be overridden when considering where the public interest lies. In our view every case must be considered on its own merits, and it would be an error [my emphasis] to seek to limit the application of the public interest test in relation to LPP material so as to give rise to a presumption that only in very exceptional cases would the public interest be in favour of disclosure.’

The FTT here stops short of calling this an error of law, but nonetheless that is what it is, according to the above case law. I am also aware that FTT decisions do not set a precedent, but nonetheless they can be persuasive on the Upper Tribunal.

In paragraph 24 of EA/2021/0064 it states:

‘We note that the appellant was sent a detailed letter by the Commissioner on 2 February 2021, which sets out the writer’s views on the public interest test under section 42, based on his experience as a case officer. This agrees there has been an inconsistency in which the public interest test has been described, but explains why it is not clear that this means the test has been inconsistently applied. The appellant did not accept this explanation, and insisted on the matter proceeding to a decision notice. This is an example of the appellant’s obsessive approach to this issue. He is not willing to accept reasoned explanations that do not concur with his own.’

Except these are not my reasoned explanations - they are the reasons of an Upper Tribunal judge. I am simply not willing to accept the opinion of an ICO caseworker over and above that of a highly experienced Upper-tier Tribunal judge (Judge Wyn Williams in DBERR v O’Brien v IC [2009] EWHC 164 (QB). The FTT states that because I will not accept a caseworker’s opinion over and above that of one of the most senior judges in the land this makes me obsessive and vexatious. No, it does not.

Ground two – The First-tier Tribunal regard the requester, not the request, as vexatious –

This is contrary to the FOIA and subsequent case law and is clearly a material error of law.

I appreciate and agree that a holistic approach must be taken with regard to section 14 allegedly vexatious requests, but some things cannot be, and arguably should not be, taken into account as material evidence.
The Information Commissioner’s Office have produced guidance on section 14 of the FOIA, as they have been required to do by law. In this guidance, under the subheading of The cut off point for evidence that a request is vexatious, it states:
‘130. The authority may take into account any evidence it has about the events and correspondence which proceeded or led up to the request being made.
131. An authority has a set time limit (normally 20 working days) in which it must respond to a request. As long as the authority keeps to this time limit then it may also take into account anything that happens within the period in which it is dealing with the request (for example if the requester sends in further requests).
132. However, an authority cannot take into account anything that happens after this cut off point. This means that if a public authority breaches the Act and takes longer than 20 working days to deal with a request, or if it makes a late claim of section 14 (1) after a complaint has been made to the ICO, then it will need to be very careful to disregard anything that only happened after the time for responding had expired.’

But the ICO are not practising what they preach: they tell other authorities to adhere to their guidance, but then they wilfully ignore this guidance themselves. The ICO used two FOI requests that I made to them about their working practices during the pandemic to show that my request concerning section 42 FOIA was vexatious. These requests significantly post-date the stipulated 20 working days.
My two requests on the subject of the working practices of the ICO during the pandemic are not even remotely related to the subject of the request which is alleged to be vexatious – section 42 of the FOIA. They are ‘linked’ by one thing, and one thing only – the requester.
The strongest possible evidence that the FTT regards me, and not the request as vexatious, is what is stated in paragraph 28 of the FTT’s decision:

‘The appellant says in his appeal that he will not make any further requests on the same subject matter, but there is a clear pattern of repeated requests which indicates that he is likely to send further requests on related topics or on new topics which WOULD be similarly disruptive and lack value and purpose’ [emphasis mine].

The FTT is clearly saying that any and every request that I ever make to the ICO, and to any other authority, in the future on ANY subject WOULD (not might be) be vexatious – designed to be disruptive, valueless and purposeless. There could not be any clearer indication that the FTT regard the requester and not the request as vexatious.
To reiterate again – the FTT have stated in writing that any future request from me on a topic completely unrelated in any way to section 42 FOIA will be vexatious.
Any authority reading the decision in EA/2021/0064 would now quite likely refuse any request from me to them as vexatious, without any evidence of it being so, simply because a judge has determined that any and all requests from me will be designed only to be disruptive, valueless and purposeless. This is on the public record. This is an affront to any liberal democracy. This is a material error of law.

My appeal will obviously be rejected, as no judge is ever going to admit that they are ever wrong on anything. Then off to the Upper Tribunal I go.

J Roberts left an annotation ()

M Boyce,

Thanks for posting. It's always good to read arguments relating to appeals direct from the appellant. Tribunal decisions may include some but not all. You may have to wait until 2023 before the matter is concluded!

M Boyce left an annotation ()

Thanks. I expect it to be a lot later than that. My Appeal EA/2019/0032 has been in the tribunal system now for nearly three years so far. If the oral hearing at the Upper Tribunal is successful (and I will fight doggedly to make it so) the case is likely to be remitted back to the FTT and another tribunal and another 3 years of the same.

J Roberts left an annotation ()

DN concerning the DWP and section 42.

IC-47958-R8L1

'48. The Commissioner asked DWP to identify which paragraphs within the documents it sought to withhold under section 42. DWP identified 14 paragraphs in document (a) and 4 paragraphs in document (b) to which DWP stated that it has applied advice privilege.

'50. Having considered the content of the identified paragraphs it is not clear to the Commissioner how the content of any of the paragraphs – bar
one - comprises legal advice.

53. The Commissioner accepts that the identified paragraphs may have been written in accordance with legal advice provided prior to their drafting. However, the Commissioner does not accept that specific legal advice is revealed in the identified paragraphs...DWP has failed to provide evidence that any of the paragraphs were written by a lawyer or were written as a direct result of legal advice.

73. The Commissioner considers that, while the withheld information could be identified as legal advice, it is not of the form or content that would be likely to undermine the inherent confidentiality between a lawyer and their client if disclosed.

74. The Commissioner considers that there is a very strong public interest in disclosure of any legal advice obtained by DWP regarding whether limiting the uplift to Universal Credit and Working Tax Credit claimants could be discriminatory.'

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

M Boyce left an annotation ()

Thanks for this J Roberts.

It is interesting reading.

My eye was caught by paragraph 61, where again the ICO displays its inconsistent approach to section 42 FOIA:

'61. Therefore the Commissioner does NOT consider that the public interest considerations need to be exceptional [let alone VERY exceptional, as in my case and several others] in order to overturn the acknowledged strong public interest in maintaining the exemption.'

Yet almost every ICO case worker has a different take on the law - some favouring extreme exceptionality, some favouring exceptionality, and some not favouring either. You takes your pick with the ICO.

Below I will copy and paste Judge Oliver's refusal of my application to appeal to the UTT for case EA/2021/0064. It makes interesting reading.

I will be appealing it directly to the UTT.

M Boyce left an annotation ()

FIRST-TIER TRIBUNAL GENERAL REGULATORY CHAMBER (INFORMATION RIGHTS)

Mr M Boyce Applicant - and - Information Commissioner Respondent
TRIBUNAL: JUDGE OLIVER Sitting in Chambers on 11 November 2021 RULING ON APPLICATION FOR PERMISSION TO APPEAL

1. Permission to appeal is refused.

REASONS

Background to Appeal

This appeal is against the decision of the Tribunal dated 11 October 2021 under the Freedom of Information Act 2000 (“FOIA”). The Tribunal upheld the decision of the Information Commissioner that the Office of the Information Commissioner (“ICO”) was entitled to rely on section 14(1) FOIA (vexatiousness) to refuse to reply to the appellant’s request for information. The appellant had requested information about caseworkers who had dealt with specific FOIA complaints relating to section 42 FOIA 2 (legal privilege), and he alleges that the ICO has been applying the public interest test incorrectly and deliberately in breach of the law.

The Application for Permission to Appeal

2. The Applicant’s grounds of appeal are set out in his application of 29 October 2021 as follows:

3. Firstly, the Tribunal failed to have regard to material evidence and failed to give effect to binding caselaw. The appellant says that the ICO broke public law by failing to follow caselaw on the exemption for legal privilege under FOIA, and the Tribunal has ignored this evidence and wrongly said he had suggested a breach of criminal law. He also complains that the Tribunal has wrongly found he is obsessive and vexatious for not accepting a caseworker’s opinion over that of one of the most senior judges in the land.

4. Secondly, the Tribunal regarded the requester rather than the request as vexatious. He says that a public authority cannot take into account anything that happens more than 20 days after receiving a request. He also complains that the Tribunal has said all future requests to the ICO would be vexatious.

Ruling

5. I have considered in accordance with rule 44 of the Tribunal Procedure (First tier Tribunal) (General Regulatory Chamber) Rules 2009 whether to review the Tribunal’s Decision but have decided not to undertake a review, as I am not satisfied that there was an error of law in the Decision.

6. Appeals from the First-tier Tribunal to the Upper Tribunal can only be made if there is an arguable error of law in the First-tier Tribunal’s decision. Rule 42 of the Tribunal’s Rules requires a person requesting permission to appeal to identify an alleged error of law in their application for permission to appeal. It is not possible to appeal simply because you do not agree with the Tribunal’s decision.

7. I have considered whether the grounds of appeal identified above are arguable. This means that there must be a realistic (as opposed to fanciful) prospect of success – see Lord Woolf MR in Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538. I have concluded that the grounds are not arguable for the following reasons.

8. In relation to failure to have regard to material evidence and failure to give effect to binding caselaw, the Tribunal did not say that the appellant was alleging a breach of criminal law by the ICO or ignore relevant caselaw. In paragraph 27 of its decision, the Tribunal found that the appellant had not provided evidence to support serious accusations that the ICO is deliberately breaking the law. The appellant alleges that the ICO was deliberately breaking the law by applying the public interest test incorrectly. The Tribunal did not say the appellant was incorrect in his interpretation of the law or fail to take account of relevant caselaw, or suggest that the appellant was alleging a breach of criminal law.

9. The ICO’s caseworker had explained to the appellant that an inconsistent description of the public interest test does not necessarily mean that there has been an inconsistent application of the test. The Tribunal found at paragraph 24 that the appellant failed to accept this reasoned explanation for the inconsistent way the test had been described in different decisions, and this was relevant to the appellant’s motive in making the request. The ICO’s caseworker did not state the law incorrectly, and the Tribunal did not say the appellant was vexatious for failing to accept the ICO caseworker’s opinion over and above that of a Judge.

10. In relation to the Tribunal regarding the requester rather than the request as vexatious, the Tribunal applied the relevant tests correctly. The Tribunal did not incorrectly take account of later requests in assessing whether the appellant’s request was vexatious at the time it was made. As explained in paragraph 25 of the decision, the appellant’s wider course of dealings with the ICO was relevant evidence in relation to the motive of the appellant’s request, assessment of which is part of the guidance provided by the Upper Tribunal in Information Commissioner v Dransfield.

11. Paragraph 28 of the decision found on the basis of the evidence that the appellant was likely to send further requests which would be similarly disruptive and lack value or purpose. The Tribunal did not find that all future requests from the appellant to the ICO would be vexatious.

12. The Applicant is entitled to renew his application to the Upper Tribunal.

DATE: 11 November 2021

HAZEL OLIVER JUDGE OF THE FIRST-TIER TRIBUNAL

M Boyce left an annotation ()

My direct appeal to the UTT will focus on the following:

8. ...'The Tribunal found that the appellant had not provided evidence to support serious accusations that the ICO was DELIBERATELY breaking the law.'

How can I possibly prove without any doubt that the ICO were and are DELIBERATELY breaking public law? They are breaking the law as the Tribunal tacitly admit, but are they accidentally breaking the law?
Some case workers are breaking the law and the ICO lawyers are doing the same in supporting these cases through the tribunal system.
The Tribunal are saying that I am vexatious because I cannot definitively prove that the breaking of the law is not accidental.

The Tribunal state in paragraph 8 that:

'...the Tribunal did NOT say the appellant was incorrect in his interpretation of the law.'

This is a tacit admission that the ICO are breaking the law. The Tribunal suggest this law-breaking is accidental.

In paragraph 11 it states:

'.... the appellant was LIKELY to send further requests [ on new topics] which would be similarly disruptive and lack value or purpose.'

This is utter nonsense and completely untrue. Where is the evidence for this outrageous accusation?

J Roberts left an annotation ()

'9. The ICO’s caseworker had explained to the appellant that an inconsistent description of the public interest test does not necessarily mean that there has been an inconsistent application of the test.'

Are the words used by the Commissioner to describe the public interest test therefore practically devoid of meaning? For example:

'18. The Commissioner concluded that the public interest reasons did not need to be ‘exceptional’ to overturn the strong public interest in
maintaining the exemption...'

https://www.bailii.org/uk/cases/UKFTT/GR...

J Roberts left an annotation ()

You'll be familiar with the following, but maybe it will remind you of something else:

'What is an error of law?
...

"(i) making perverse or irrational findings on a matter or matters that were material to the outcome ('material matters');

(ii) failing to give reasons or any adequate reasons for findings on material matters;

(iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv) giving weight to immaterial matters;

(v) making a material misdirection of law on any material matter;

(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; ...

Each of these grounds for detecting any error of law contains the word 'material' (or 'immaterial'). Errors of law of which it can be said that they would have made no difference to the outcome do not matter."' (para 14)

https://www.bailii.org/nie/cases/NISSCSC...

Some questions:

Did the tribunal fail to take into account material matters or give too much weight to immaterial ones?

Were any conflicts of fact or opinion brushed aside or ignored?

Would no reasonable tribunal have come to the same decision?

Could a lack of clarity in the decision amount to a material error of law?

Did the tribunal misinterpret the law? If so, how?

Did the tribunal fail to explain matters that it assessed?

Did the tribunal fail to admit relevant evidence?

Could the tribunal's apparent lack of interest in a particular evidential area amount to a material error of law?

M Boyce left an annotation ()

The ICO and the Tribunal make it up as they go along. They quote case law when it supports their case and they ignore it when it doesn't.

You are perceptively thinking along the very same lines as me: first identify errors of law and then decide if they are material errors or not - could they have made a difference to the outcome of the Tribunal's decision?

I will be stating the material errors of law in my oral hearing to the UTT in the first week of January. Will they take any notice? We'll see.

J Roberts left an annotation ()

'How can I possibly prove without any doubt that the ICO were and are DELIBERATELY breaking public law?'

The tribunal was right to say that you made a serious allegation, but the key issue is whether the tribunal made a legal mistake. Your research revealed to me an inconsistency in the Commissioner's application of section 42, not that she was deliberately breaking the law. You might consider conceding that the Commissioner's behaviour was deliberate.

M Boyce left an annotation ()

Either the ICO are deliberately breaking the law or they don't know what they are doing? Let's look briefly at the evidence.

Could ICO case workers not know the law (even though they are being paid to know about the FOIA)? Yes possibly.

Could more senior, and sometimes very senior, ICO staff who review and sign-off case workers' decisions also not know the law? Possible, but unlikely.

Could ICO solicitors who uphold ICO decisions stating 'extreme exceptionality' not know the law? Possible, but very unlikely.

Could First-tier Tribunal judges not know the law (in my case describing extreme exceptionality as an error, but not an error of law)? Possible, but extremely unlikely.

Then bear in mind that I repeatedly told all of them over and over and over again that the extreme exceptionality argument was contrary to the law.

They are deliberately ignoring/breaking the law. That is what the evidence very strongly suggests. The alternative is that they are incapable of understanding very basic law.

J Roberts left an annotation ()

It is difficult to discern why the upholder of information rights would apply section 42 very differently from one case to the next. However, given the tribunal's apparent acceptance of the Commissioner's argument that an 'inconsistent description' of the PIT does not necessarily lead to an inconsistent outcome, could not the tribunal's incuriosity be grounds for a challenge based on the third error of law (iii) that I referred to in a previous comment? Was it not incumbent upon the tribunal to make a finding on the matter rather than simply state the Commissioner's view? The tribunal seems to have found nothing incongruous with the Humpty Dumpty approach of the Commissioner:

'When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.'

Curiouser and curiouser!

M Boyce left an annotation ()

Yes it is certainly worth considering.

The ICO's inconsistent approach is very largely a result of the fact that their decisions are made by case workers, who all have different views and different amounts of knowledge. The idea that these decisions are 'robustly' quality checked by senior staff is laughable - they are not. Then once a decision is challenged at tribunal the ICO just stand by the case worker regardless whether the decision is right or wrong.

The exact same happens at the PHSO. It's all tediously predictable.

J Roberts left an annotation ()

This recent complaint was not upheld (IC-81057-X7Q2). It includes this:

'24. It follows that, whilst the public interest factors in favour of disclosure do not need to be exceptional, because of the inherent importance of LPP such factors must be considerable, if they are to outweigh the strong interest in protecting the principle of LPP.'

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

M Boyce left an annotation ()

This case shows again just how inconsistent the ICO are when it comes to the law. Sometimes they favour do not need to be exceptional, sometimes they favour needs to be exceptional and sometimes they favour needs to be very exceptional.

The ICO are completely indifferent and unconcerned by this inconsistency and have taken comfort from the First-tier Tribunal who imply that this inconsistency is just accidental, and this makes it perfectly fine.

I don't agree. The law is the law and it is not to be ignored by anyone.

M Boyce left an annotation ()

I will be submitting my direct appeal to the UTT for appeal EA/2021/0064 in the next few days. One of the errors of law will be that the FTT has breached case law. The UTT case of Dransfield in paragraph 60 clearly states that there must be a subject linkage between requests for them to be swept up into the ambit of vexatiousness. In my case this was not the case. The judge swept up my requests on the working arrangements of the ICO into her vexatiousness net, when the supposed vexatious request was about section 42 FOIA. And then to add further insult to injury the judge says that future requests from me on NEW topics (her words) to the ICO are likely to be, like the section 42 request, vexatious.

There is no linkage and the FTT are in clear breach of the Dransfield case law.

Will the judge at the UTT take any notice.

Let's find out.

J Roberts left an annotation ()

Regarding the 'subject linkage' you refer to, what evidence did the tribunal possess that it based its finding on? Did it balance this evidence against ALL the relevant evidence it possessed? Did it rely on untested and therefore prejudicial evidence?

'And then to add further insult to injury the judge says that future requests from me on NEW topics (her words) to the ICO are likely to be, like the section 42 request, vexatious.'

A highly speculative statement by the judge. Were reasons provided?

M Boyce left an annotation ()

https://informationrights.decisions.trib...

The above is the Decision by the FTT.

Anyone reading this can clearly see that the Tribunal regard me as vexatious as well as the request. This is contrary to both statute law and the case law of Dransfield.

M Boyce left an annotation ()

Direct appeal to the Upper Tribunal for FTT Decision EA/2021/0064.

I am aware that I can only appeal on errors of law.

Ground one – Failure to give effect to, or misapplication of, binding case law –

The Tribunal has failed to give effect to, or has misapplied, the binding case law of Dransfield v Information Commissioner and Devon County Council [2012] UKUT 440 (AAC).

This case law makes it very clear that it is the request and not the requestor that may be considered vexatious. The Tribunal in EA/2021/0064 have made it abundantly clear that they regard the requestor as well as the request as vexatious. This is contrary to public law and is therefore a material error of law.

In paragraph 60 of Dransfield the judge outlines the fact that there must be a linkage of subject matter for different requests to be swept up into the ambit of alleged vexatiousness.

In my case there was no such linkage. The FTT states that two requests I made to the ICO about working conditions/practices during the pandemic can be used as evidence that the request under appeal was vexatious, as in paragraph 25 of the Decision:

‘We have also taken account of the appellant’s later requests to the ICO about information on working arrangements during the pandemic. Although these were sent after the current Request, they provide further evidence of the appellant’s underlying motive…. These repeated requests seem deliberately designed to cause disruption to the ICO during the very difficult time of the pandemic.’

I completely disagree with the Tribunal. I emphatically and vehemently deny that my motive was to disrupt the ICO. It is not true and there is not a shred of evidence to support such an outrageous accusation. Importantly, in terms of error law, there is no linkage of subject matter.

It is true that my requests to the ICO about their working arrangements during the pandemic were a result of the ICO’s not responding to the request on section 42 for month after month after month, apparently because they were working from home during the pandemic. My requests were not unreasonable and most certainly not designed to cause disruption. I knew people who had been badly affected by the pandemic and it is an insult for the Tribunal to claim that I deliberately wanted to disrupt the ICO at a difficult time. I wanted information to hold them to account, not to disrupt them.

There is no linkage of subject matter, only a linkage of one completely different subject matter following another completely different subject matter – linked only by the ICO’s non-adherence to the law.

The FTT then further state that in paragraph 28 of the Decision that:

‘The appellant says in his appeal that he will not make any further requests on the same subject matter, but there is a clear pattern of repeated requests which indicates that he is likely to send further requests on related topics or on NEW topics which would be similarly disruptive and lack value or purpose.’

Firstly, my requests have never been aimed to be disruptive and they have always had some value and purpose.
Secondly, and very importantly in terms of error of law, even if it were true that future requests from me to the ICO on NEW topics were likely to be designed to be disruptive and have no value or purpose (an accusation I thoroughly contest) this could not, according to Dransfield, be used as evidence to make a case that the current Request under appeal was vexatious.
It is a clear error of law for the Tribunal to have made this accusation. I repeat again that it Is the request and not the requestor that may be considered vexatious.

Ground two – Not having regard to material evidence –

In paragraph 27 of the Decision the Tribunal state:

‘However, the appellant is persistent in making serious accusations that the ICO is deliberately breaking the law. He says it is true, but there is no evidence of this.’

There is an abundance of evidence to support my assertion that the ICO (not just case workers) are breaking the law with regard to section 42 FOIA. Of course, I cannot prove 100% that this law -breaking is deliberate, rather than a result of them not knowing about the law or just being incompetent, but, on the balance of probabilities (and this is the test that is good enough for the Tribunal, so it should be good enough for me) it is very clear that they are deliberately breaking the law. The evidence for this is as follows:

The ICO state in their guidance on section 42 that extreme exceptionality is not the correct rule – although this is based on an FTT decision and not an UTT decision;

senior ICO case workers know about the FOIA in detail and the case law developing from it, as it is their job to do so;

senior ICO staff that review case worker decisions know about the FOIA in detail and the associated case law;

Senior signatories of ICO DN’s know about the FOIA in detail and the associated case law;

Senior lawyers at the ICO know about the FOIA in detail and the associated case law;

Senior lawyers were informed by me on multiple occasions during the progression of my appeal EA/2019/0032 through the tribunal process that the ‘extreme exceptionality’ test was contrary to the case law of DBERR v O’Brien v IC EWHC 164 (QB) (especially paragraph 41). They ignored this completely and stated that they FULLY endorsed the ICO’s DN in appeal EA/2019/0032.

On the balance of probabilities, the ICO were deliberately breaking public case law. The Tribunal say there is no evidence of this, but they are ignoring the above evidence and this is a material error of law.

If this direct appeal on the papers to the Upper Tribunal upholds the First-tier Tribunal decision I will have no option but to request an oral renewal of the appeal.
The ICO tried and failed to extend ‘vexatiousness by drift’ to other authorities and now the Tribunal is trying, and must fail, for the rights of all in a liberal democracy, to ignore both the statute law of the FOIA 2000 and the case law of Dransfield, where both makes it clear that it must be the request and not the requestor that may be found vexatious.

J Roberts left an annotation ()

Thanks for posting details of your application for permission to appeal. In other areas of law, there is the concept of the 'vexatious litigant'. Here is a list of them:

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

The tribunal seems to have considered immaterial matters to reach an erroneous conclusion.

Here is a short and clear decision (NI PIP) that illustrates the distinction between a material and an immaterial error of law (paras 23-28):

RM v Department for Communities (PIP) [2021] NICom 51

https://www.bailii.org/nie/cases/NISSCSC...

M Boyce left an annotation ()

Thanks J Roberts.

You are quite right that some OTHER areas of law recognise the concept of a vexatious litigant, but the FOIA is explicitly not one of them - despite the ICO and the FTT trying to make it so.

A material error of law is an error that had it not occurred the outcome of a legal decision might have been different - assuming of course that the decision-maker is acting fairly and impartially.

J Roberts left an annotation ()

Section 42 - not upheld

DN IC-91941-Y7R6

'"2. Copies of the legal opinion giving rise to the conclusions that the Labour Party broke the law.

3. Copies of any dissenting legal opinions that the EHRC received.”

56. The Commissioner believes that the public interest lies in protecting the substance of the legal advice in this instance, though she notes that it is a fine balance.'

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

J Roberts left an annotation ()

Recent UT appeal that was allowed (section 14):

Hendy v Information Commissioner & Animal and Plant Health Agency [2021] UKUT 306 (AAC)

The case has been remitted for rehearing before a fresh FTT.

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

M Boyce left an annotation ()

This just goes to show that the ICO and the FTT are far too keen to wrongly find requests (or in my case requestor) vexatious.

J Roberts left an annotation ()

I found this sentence from paragraph 62 particularly interesting:

'I consider this part of the statement to be purely descriptive and not a finding of fact that Mr Hendy failed to follow the Request 1 advice.'

When a judge points out the distinction between a description and a finding of fact it's easy to agree with them. Spotting the distinction by oneself isn't so easy!

J Roberts left an annotation ()

ICO training materials on dealing with vexatious requests:

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

Quiz:

'An authority may ignore correspondence from a requester who is vexatious

True

False – it needs to consider whether each individual request is vexatious.

Sometimes'

https://www.whatdotheyknow.com/request/8...

M Boyce left an annotation ()

Quiz.

Q. An authority may regard the requester as vexatious?

A.'' True'', but only if that authority is the PHSO, the ICO or the First-tier Tribunal.

In terms of the 'Hendy' UTT case, an appellant can only appeal on 'errors of law', and not on errors of fact. This means that the FTT can strew their decision with any number of serious errors of fact, but the appellant cannot challenge these errors.

J Roberts left an annotation ()

In 'JW v Governing Body of Sinai Jewish Primary School' reference is made to 'R (Iran)'. The significance of new evidence on the relationship between an error of fact and an error of law is considered:

'18. ...in R (Iran), it was contemplated that new evidence might satisfactorily prove to an appellate court or tribunal that a fact-finding tribunal had made an error of fact from which it might be inferred that there had been an error of law.'

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

M Boyce left an annotation ()

It is certainly true that many errors of law can and must arise from errors of fact, and it is sometimes difficult to separate errors of fact from errors of law.

It is certainly the case that any MATERIAL error - be that of fact or law -should be able to be appealed. This is of course not the case - the most grievous material errors of fact cannot be appealed, unless they also happen to be errors of law.

J Roberts left an annotation ()

Interesting material here:

'SM v Secretary of State for Work and Pensions (IIDB) [2020] UKUT 287 (AAC)'

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

'Why isn’t this just an error of fact?

15. The Upper Tribunal can only allow an appeal if the decision of the First-tier Tribunal “involved the making of an error on a point of law” (see section 12(1) of the Tribunals, Courts and Enforcement Act 2007)...

35. Making a finding of fact for which there is no evidence is normally regarded as an error of law...

37. The error that has occurred in this case can therefore be seen as more procedural than substantive. The Tribunal has not made an incorrect decision of fact on a matter raised by the parties. Rather, as part of the process leading to its decision, the Tribunal has led itself astray and based that decision on a false premise.'

M Boyce left an annotation ()

Yes it is interesting material, and it shows just how difficult it can sometimes be to separate errors of law from errors of fact.

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

The above UTT case is also interesting, and particularly paragraph 94.

'.....any error of law or fact or even a difference of view... If the F-tT decides that the Commissioner's decision was made in error of law but agrees with the decision, then it will dismiss the appeal.'

So where does all this leave the appellant in terms of 'errors of law'?

The FTT can just decide whatever they feel like- regardless of clear errors of law.

J Roberts left an annotation ()

"'If the F-tT decides that the Commissioner's decision was made in error of law but agrees with the decision, then it will dismiss the appeal.'

So where does all this leave the appellant in terms of 'errors of law'?"

I find paragraphs 78 and 109 particularly informative:

“78. the UT’s comments in Birkett at paragraph 58 regarding the requirements of fairness:

'58 ...The tribunal is required to consider whether the Commissioner’s decision notice was in accordance with law...In other words, the section imposes the “in accordance with the law” test on the tribunal to decide independently and afresh. It is inherent in that task that the tribunal must consider any relevant issue put (sic) it by any of the parties. That includes a new exemption relied on by the public authority.'

109. We summarise the effect of our analysis on the role of the F-tT where a public authority has relied on two exemptions (‘E1’ and ‘E2’) and the Commissioner decides that E1 applies and does not consider E2. If the F-tT agrees with the Commissioner’s conclusion regarding E1, it need not also consider whether E2 applies. However, it would be open to the F-tT to consider whether E2 applies...”

The F-tT can therefore disagree with the Commissioner that exemption 1 is engaged (E1) but agree that that the appellant should not receive the information because it finds that exemption 2 (E2) is. The appellant can then seek permission to appeal the decision based on the F-tT's finding that exemption 2 (E2) is engaged.

J Roberts left an annotation ()

Regarding the s42 complaint upheld by the IC concerning the DWP (IC-47958-R8L1 – see comment of 25/11/21):

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

The DWP is appealing:

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

M Boyce left an annotation ()

When the ICO issue a Decision Notice (DN) they create and store a summary record of that DN in the form of a document called a CR03 DN sign-off form.

This document records who was the case worker who drafted the DN, who reviewed the DN, and who signed-off the DN. All well and good you might think. But, not always.

This quality control process 'appears' to be a truly tripartite process, but it is often not. In my CR03 form for DN FS507788785 (EA/2019/0032) the case worker was the person who signed-off the DN. It was reviewed by another case worker.

The First-tier Tribunal have stated that DN signatories are 'responsible' for the DN's. But what does 'responsible' mean? A case worker signing-off their own DN is clearly responsible for that, but how is a signatory (such as a Group Manager) 'responsible' for that DN?

There is obviously an inconsistency here and it is disturbing.

The last ICO Casework Service Guide was published nearly two years ago in February 2020. The ICO have now drafted a new version, but is seemingly reluctant to publish it. Why?

Why are some DN's signed-off by the very people who draft those DN's, while others are signed-off by more senior ICO staff? One case worker reviewing another case worker's decision is no substitute for a senior ICO employee reviewing (signing-off) a case worker's DN.

Is it not time for transparency from the ICO?

The ICO and the First-tier Tribunal say that such a question is vexatious. But why?

J Roberts left an annotation ()

You paint a murky picture.

Could it be that cases are categorized in some way e.g. by complexity or contentiousness? Cases deemed to be simple and straightforward are perhaps processed by less senior staff. If cases are categorised as I have described, however, then at what point are they categorized and by whom?

Something about 'Malnick' and fairness. At paragraph 78 (see comment above) the tribunal stressed the point that public authorities can rely on new exemptions.

A recent case (EA/2021/0019 and & EA/2021/0020) clearly illustrates the difficulty of new exemptions for the appellant:

https://www.bailii.org/uk/cases/UKFTT/GR...

' 5. It is regrettable that, as will be evident from our decision, the issues in these appeals narrowed significantly after a prolonged closed session...

14. The process following the Request was drawn out; and, we regret to say, frustratingly, because of GMP continually changing its position, and seeking at different points to rely on a large number of different exemptions, only few of which it now seeks to rely...

54. ... It was accepted that it was only the day before that a detailed account had been given and that with regard to Mr Bacon’s appeal all the necessary information had been given to him...

97. As a final note, although we have allowed GMP’s appeal, this should not be taken as an endorsement of their conduct before and during the appeal'.

M Boyce left an annotation ()

Yes it does appear that cases are 'triaged', to SOME extent, according to their complexity and contentiousness, as the following states:

Casework Service Guide February 2020

8.13 'Following the initial review the GROUP MANAGER will assign a signatory. More senior signatories will be assigned to the most complex and sensitive cases.'

This means that many less complex and less sensitive cases are just signed off by the case worker who drafts the Decision.

In March 2020 I was informed by email of the following:

'I can advise that a number of years ago due to the delays in decisions being signed off and the growing backlog, it was agreed the Senior Case Officers (SCO) could sign off their own decision notices. This was on a voluntary basis and for a variety of reasons not all SCO's volunteered.'

Why didn't the 2020 Casework Service Guide state this? Will the new draft state this? Who knows, since its publication is being delayed. Why? Could it have something to do with the fact that my appeal on this very issue is currently with the Upper Tribunal? Yes, of course it could.

In terms of an authority constantly changing and/or adding new exemptions, this is designed to throw the appellant into further confusion and to make it very difficult for them. A moving target is much harder to hit than a static one.

J Roberts left an annotation ()

'I can advise that a number of years ago due to the delays in decisions being signed off and the growing backlog, it was agreed the Senior Case Officers (SCO) could sign off their own decision notices. This was on a voluntary basis and for a variety of reasons not all SCO's volunteered.'

What does the Casework Service Guide say about signing off decisions?

Giving senior case officers the authority to sign off their own decisions was a major change. Perhaps information detailing the effectiveness or otherwise of the new policy exists? It would seem reckless to introduce such a change without carefully monitoring its effects.

J Roberts left an annotation ()

The Principal Adviser considers s42 in the following complaint.

IC-46780-Y2B0 – (not upheld)

Foreign, Commonwealth & Development Office

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

'74. Consequently, although there will always be an initial weighting in terms of maintaining the exemption, the Commissioner recognises that there are circumstances where the public interest will favour disclosing the information. In order to determine whether this is the case, the Commissioner has considered the likelihood and severity of the harm that would be suffered if the advice were disclosed by reference to the following criteria:

• how recent the advice is; and
• whether it is still live.

75. In order to determine the weight that should be attributed to the factors in favour of disclosure the Commissioner will consider the following criteria:

• the number of people affected by the decision to which the advice
relates;
• the amount of money involved; and
• the transparency of the public authority’s actions.

80. However, and by a relatively narrow margin, the Commissioner has concluded that the public interest favours maintaining the exemption.'

(My post of 20/1/21 concerns the PIT)

M Boyce left an annotation ()

I agree that making such a major change without careful monitoring is reckless. The change was made out of financial expediency.

It is clear to me that the 'rigorous' quality control of ICO decisions is not rigorous at all. A case worker drafts the decision, and if they want to they can sign off the decision themselves. If the case worker chooses not to sign off the decision, then it will be signed off by another case worker or a more senior member of staff. I have seen a number of the CR03 DN sign off forms and none of them display any input from anyone who 'reviews' or sign-offs the decision.

Make no mistake: the decision is made by a caseworker and it is not checked to any extent by anyone else.

The FTT informed me that the person who signs off the DN is RESPONSIBLE for that DN. But what does 'responsible for' actually mean? The signatory just slaps a signature on the CR03 form and that is it.

I note as well that at least one decision on section 42 that stated the unlawful extreme exceptionality argument was correct was none other than the ICO's Principal Adviser. Does he not know what he is doing, or did he just sign off the DN without properly looking at it? On the evidence the latter is most likely.

J Roberts left an annotation ()

Deeply concerning to read that the Principal Adviser has used the 'extreme exceptionality' argument. There seems to be a terrible unpredictability about how the law in regard to s42 is interpreted.

M Boyce left an annotation ()

https://icosearch.ico.org.uk/s/search.ht...

Yes there is a terrible unpredictability to how the ICO deals with section 42 cases. In this case they decided that disclosure should occur.

Gerrard Tracey is the Principal Adviser at the ICO and has around 10 years experience in that role. Does he not know about the binding case law with regard to section 42 FOIA?
If he does, then he just chose to ignore it.

Which is worst for a very senior member of the ICO: incompetence or choosing to ignore the law?

J Roberts left an annotation ()

Is the guidance on s42 covered by the Regulators’ Code?

'We must follow the Regulators’ Code as our responsibilities are specified by order under section 24(2) of the Legislative and Regulatory Reform Act 2006. In adhering to this code, we aim to:

support and engage with those we regulate;
share information;
provide clear guidance; and
act transparently and in an accountable manner.'

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

I've asked for a copy of the information the GMC was required to disclose in DN FS50794284 that you linked to:

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

M Boyce left an annotation ()

Excellent stuff J Roberts.

You ask if the Guidance on s42 FOIA is covered by the Regulator's Code?

Yes, it most certainly is.

But, the Establishment never practices what it preaches.

The ICO loves to quote statute and case law to support its actions and decisions, but when Joe Public quote statute and case law to support their appeals the ICO just dismiss the law as mere 'terminology'. How convenient.

Sadly the First-tier Tribunal and the Upper Tribunal are also SOMETIMES wrong on the law with regard to section 42 FOIA (I would never say this if I couldn't prove it).They know full well that the 'extreme exceptionality' argument is contrary to the case law of DBERR v O'Brien, and yet they won't say so in my appeals.

That reminds me is anybody watching the moving drama called 'Anne' on ITV?

J Roberts left an annotation ()

GMC legal advice related to DN FS50794284 previously mentioned is available here:

https://www.gmc-uk.org/about/how-we-work...

M Boyce left an annotation ()

Thanks for this information. It's always interesting to see legal advice.

Why didn't the GMC appeal to the FTT? They could have afforded the most expensive , dare I say, 'very exceptional' lawyers.

The very exceptional argument, as often used by the ICO in regard to section 42 FOIA, is simply and indisputably not in accordance with the law.

Why the GMC caved in so easily is puzzling.

M Boyce left an annotation ()

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

The above is another ICO DN signed-off by Gerrard Tracey, the ICO's Principal Adviser FOI.

Now this one is very telling indeed.

Paragraph 8.13 of the ICO's now very out of date 'Casework Service Guide Feb. 2020' states:

'Following the initial review the group manager will assign a signatory. More senior signatories will be assigned to the most complex and sensitive cases.'

Yeah right!

The above DN exposes that as untrue. The above DN was not very complex or sensitive - it merely asked for the contact details of a firm of solicitors.

I have forensically critiqued the ICO's 'robust' quality control of its DN's throughout this thread, and this just adds more weight to the evidence that something is very wrong.

The First-tier Tribunal do not agree and just accuse ME and not just the request of being vexatious.

Look at the weight of the evidence and make up your own mind.

J Roberts left an annotation ()

'The above DN exposes that as untrue. The above DN was not very complex or sensitive - it merely asked for the contact details of a firm of solicitors.'

I agree that it doesn't look complex and I'm not sure how it could be seen as sensitive. Could it be something to do with the nature of the work done by the solicitor – the proceeds of crime?

Paragraph 43 and 44, however, suggest that the nature of the work done by a solicitor is irrelevant:

'43. ...Knowing the name of a particular solicitor, in a particular type of court matter, does not in itself realistically advance a person’s knowledge as to whom he or she should instruct in their own proceedings.

44. Further, there is also no legitimate interest in the public generally knowing the name of a defendant’s legal representative certainly when the defendant in the proceedings is an ordinary member of the public...'

M Boyce left an annotation ()

The last ICO Casework Service Guide was published in February 2020, and paragraph 1.19 states:

'We will proactively publish this service guide and will conduct ANNUAL formal reviews..'

In just over a weeks time I will be sending the ICO an FOI request asking for a copy of any formal reviews conducted in last two years, and when any new Casework Service Guide may be published. I suspect they will be less than forthcoming with this information.

M Boyce left an annotation ()

Another quick mention of the ICO's 'robust' quality control of its Decision Notices (DN's).

In the Feb. 2020 Casework Service Guide it states at paragraph 8.13:

'following the initial review the group manager will assign a signatory...'

OK.

But when you look at the ICO's DN's none are ever actually signed- none that is except a single exception, signed by Group Manager Laura Tomkinson, dated 26 October 2021?

The CR03 DN 'sign-off' forms are also never literally signed-off, and it seems not by the person that should have 'signed-off' the DN.

In my CR03 DN 'sign-off' form it states:

'Recommended signatory: Group Manager. Please specify' -- blank.

The CR03 form was reviewed by another case officer, but 'signed-off' by the caseworker who wrote the DN, and not a group manager.

Why hasn't the Casework Service Guide been updated, as promised, to reflect this serious departure from the Casework Service Guide?

the ICO pride themselves on being open and transparent.

Well they are not being here.

J Roberts left an annotation ()

"'Recommended signatory: Group Manager. Please specify' -- blank."

Only questions, I'm afraid.

Does it definitely mean that the Group Manager has not authorised the decision because they have not signed it? Perhaps a record exists elsewhere? How does the case officer decide whether their Group Manager should be involved?

Service guide:

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

M Boyce left an annotation ()

I can't see how a record could exist elsewhere. Why would it? Where would this leave the ICO's commitment to transparency?

You ask: How does the case officer decide whether their Group Manager should be involved?

That is a very good question.

Firstly, several years ago group managers delegated authority to case workers to sign-off their own DN's, because of the growing backlog of cases. Not all case workers agreed to sign-off their own DN's.

It also turns out that those that did agree sometimes sign-off their own DN's and sometimes get a more senior ICO staff member to do it. Perhaps where they are unsure they ask a more senior member to sign-off the DN.

The important point in all this is the lack of consistency and transparency in the whole process. The ICO are under a special duty to be transparent, and by not publishing an updated Casework Service Guide they are not being transparent.

It is very clear to me that they are playing for time. They know that I have a direct appeal ongoing with the Upper Tribunal on this matter and so they are stalling. But if the UTT refuse my appeal on the papers I will most certainly renew that application for an oral hearing. This is likely to drag the process out for many many more months to come.

M Boyce left an annotation ()

https://informationrights.decisions.trib...

And now the above.

Who was the minority?

Was it the Judge?

Why such secrecy?

The majority view is the complete opposite to the minority view. What is going on here?

Majority view:

Request had serious purpose
It had value
It was not burdensome
No evidence of harassment, distress or accusatory language

Minority view:

Request had no serious purpose
It had no value
It was burdensome
There was evidence of harassment, distress and accusatory language.

This is ridiculous.

J Roberts left an annotation ()

Radically different interpretations. There might be an appeal.

M Boyce left an annotation ()

Very likely.

The ICO will take comfort and reassurance from the minority decision.

Tim Turner left an annotation ()

This isn't science; very little in FOI is a binary yes / no situation. Different people look at the same facts and then have to apply a subjective label ("vexatious") to those facts. They have to give their opinion. To be honest, I'm surprised there are not more split decisions.

M Boyce left an annotation ()

I certainly agree that those sections of the FOIA and the EIR that apply a public interest test are far from an exact science. Nevertheless case law is there to ensure some consistency in decision making.

The above decision is startling in its extreme polarisation of opinion - particularly on factual matters.

Split decisions are quite rare and it is not clear why. Do tribunal panels not 'sit' together and discuss the case together? Are they 'encouraged' to reach a consensus of opinion, or not?

J Roberts left an annotation ()

'Split decisions are quite rare and it is not clear why. Do tribunal panels not 'sit' together and discuss the case together? Are they 'encouraged' to reach a consensus of opinion, or not?'

Even when judges sit together and agree they can get it wrong. Remember 'Miller'?

The three Court of Appeal judges who considered her case concluded:

'68. For all these reasons we concluded that the claim must fail. In our view, the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable in Her Majesty's courts.'

https://www.bailii.org/cgi-bin/format.cg...

Look who the judges were!

LORD CHIEF JUSTICE OF ENGLAND AND WALES

MASTER OF THE ROLLS

PRESIDENT OF THE QUEEN'S BENCH DIVISION

Supreme Court ruling:

'71. ...Mrs Miller’s appeal is allowed.'

https://www.bailii.org/cgi-bin/format.cg...

M Boyce left an annotation ()

Yes J Roberts you make a compelling point.

No two people will ever come to exactly the same conclusions on complex legal matters; but it is more difficult to understand how individuals looking at all the facts of a case could arrive at COMPLETELY contrary conclusions.

M Boyce left an annotation ()

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

The above is the new Casework Service Guide.

Sadly, it is now even more confusing than the last version,
kindly linked to on here by J Roberts a week or so ago.

Casework Service Guide Feb.2020:

'8.13
Following the initial review the GROUP MANAGER will assign a signatory. More senior signatories WILL be assigned to the most complex and sensitive cases.'

Casework Service Guide Jan.2022:

'8.19
Following the initial review the REVIEWER will assign a signatory. More senior signatories MAY be assigned to the most complex and sensitive cases.'

This is a radical change.

How does a caseworker decide which is the most complex and sensitive of cases?

What often happens is that a caseworker drafts a DN and then another caseworker 'reviews' that DN. The original caseworker or the reviewing caseworker then signs-off the DN.

Where does a more senior signatory fit into all this? They don't do another review, so why is a caseworker assigning them to look at more complex and sensitive cases?

The whole quality control process of DN's is inconsistent and incoherent. This does not represent transparency, and needs further investigation.

M Boyce left an annotation ()

https://informationrights.decisions.trib...

The above decision clearly shows how the FTT ignored the case law of Dransfield in my appeal EA/2021/0064.

In paragraph 25 of EA/2021/0064 the Tribunal states:

'We have also taken account of the appellant's later requests to the ICO about information on working arrangements during the pandemic. Although these were sent AFTER the current Request, they provide further evidence of the appellant's underlying motive.'

Yet in the 'Swift' case it states at paragraph 28(c):

'...The Commissioner was entitled to consider the purpose and value of the Request at the time it was made.... For the same reasons the Tribunal should not be concerned with the Appellant's reference to other requests, received by the ICO, which POST-DATE the Request at issue in this appeal.'

So the Tribunal in my case has wrongly taken into account evidence that it should not have considered, because this evidence post-dated the request under appeal and because it also concerned a completely different subject matter.

M Boyce left an annotation ()

So the First-tier Tribunal cannot take into consideration, for the purpose of section 14 vexatious, anything that happens more than 20 working days after a request is made, BUT it can take into account anything that it THINKS might happen in the future? Go figure.

Anybody got any input on this conundrum?

J Roberts left an annotation ()

'For the same reasons...'

This seems very clear to me. If the UT agrees with your reasoning, then the question arises as to whether the error was material. Could this vary from case to case?

M Boyce left an annotation ()

I don't quite follow your line J Roberts.

What is happening is that the case law states that a tribunal can look at the past history of a request - up to the date of the contested request. They cannot consider things that DID happen after that request, but they can consider things that they think MIGHT happen after that request.

For instance an appellant might ask a tribunal to consider other requests that they made to an authority after the date of the contested request that would aim to show that the contested request was not vexatious. The Tribunal would refuse to look at this.

Alternatively the Tribunal could suggest that an appellant would bombard an authority with pointless requests. The Upper Tribunal would accept this.

J Roberts left an annotation ()

Sorry for the confusion.

I see what you mean: the tribunal can speculate about future requests that an appellant might make but an appellant cannot rely on any actual requests they have made which post-date the request under appeal to support their appeal.

Seems unfair.

M Boyce left an annotation ()

There needs to be full clarity on this confusing and unfair situation. That is why this must be clarified in further case law. My case with the Upper Tribunal has not even been registered yet nearly two months on from them receiving it. Cases are normally dealt with within a matter of a few weeks.

M Boyce left an annotation ()

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

And then we have the above. Paragraph 83 is very interesting. It clearly states that requests which post-date the impugned 'vexatious' request cannot be taken into account.

Well the ICO took later requests into account in my above case, and vitally importantly so did the First-tier Tribunal!

Will the Upper Tribunal agree that this was the right and legal thing to do? We'll find out soon enough.

M Boyce left an annotation ()

In my Appeal EA/2019/0032 at paragraph 90 the Tribunal states:

'We note it is not the role of this Tribunal in this case to consider the lawfulness or otherwise of the review process, or of any other process carried out by the PHSO.'

That is actually quite wrong. It may not be the role of the Tribunal to consider the lawfulness per se, but it is the role of the Tribunal to consider the lawfulness in terms of the public interest test.

In my case the PHSO stated very publicly that their review process was not legal. They nonetheless decided to continue with a policy that was not legal.

Why is it not the role of the Tribunal to consider this?

It makes a complete mockery of the supposed fairness of the Tribunal process.

Here we have a situation where a public authority purchases legal advice at public expense, which states that what they are doing is not legal. The authority then puts its hands up and says openly: yep we are acting illegally.

The First-tier Tribunal is then asked to investigate and a judge declares that it has nothing to do with them.

So any authority can commit any illegal activity they like and the judges at the FTT will just say: not interested, nothing to see here - move along!

M Boyce left an annotation ()

M Boyce left an annotation (19 February 2022)
In my Appeal EA/2019/0032 at paragraph 90 the Tribunal states:

'We note it is not the role of this Tribunal in this case to consider the lawfulness or otherwise of the review process, or of any other process carried out by the PHSO.'

That is actually quite wrong. It may not be the role of the Tribunal to consider the lawfulness per se, but it is the role of the Tribunal to consider the lawfulness in terms of the public interest test.

In my case the PHSO stated very publicly that their review process was not legal. They nonetheless decided to continue with a policy that was not legal.

Why is it not the role of the Tribunal to consider this?

It makes a complete mockery of the supposed fairness of the Tribunal process.

Here we have a situation where a public authority purchases legal advice at public expense, which states that what they are doing is not legal. The authority then puts its hands up and says openly: yep we are acting illegally.

The First-tier Tribunal is then asked to investigate and a judge declares that it has nothing to do with them.

So any authority can commit any illegal activity they like and the judges at the FTT will just say: not interested, nothing to see here - move along!

J Roberts left an annotation ()

One would think that a review process not legally allowed for would be something worthy of consideration by the tribunal:

'9. ...There is a public interest in good decision-making by public bodies, in upholding standards of integrity, in ensuring justice and fair
treatment for all...'

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

M Boyce left an annotation ()

Agreed J Roberts.

There have been a number of FTT decisions where they clearly state that any evidence of wrongdoing or lawbreaking will factor into the public interest balance in section 42 cases - except not in my case! Funny that.

I am kicking myself that I did not discuss this with the Upper Tribunal Judge at the oral hearing in early January. Hopefully I will get a chance to raise this issue if the Judge gives me permission to appeal.

M Boyce left an annotation ()

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

In paragraph 52 of the ICO's DN they state:

'The complainant has rightly pointed to the Commissioner's own guidance on section 14 which notes that it is the request and not the requester which must be vexatious. BUT...'

Except there is no ifs and not buts - it is ALWAYS the request and not the requester that may be considered vexatious.

The ICO do like their buts to the law. BUT they are wrong again.

This appeal was finally registered with the Upper Tribunal yesterday, after taking nearly ten weeks for the UTT to do so. They said it was covid that has led to this delay. BUT, they only finally agreed to register my application to appeal AFTER I told them I was about to make a formal complaint to the UTT manager. Funny that.

J Roberts left an annotation ()

It is the request and not the requester:

EA/2018/0152

'It is trite law that, for section 14(1) to apply, it is the request which must be vexatious, not the requester. Although the motives and behaviour of the requester may be relevant, vexatiousness looks at the effect on a public authority of having to deal with a request. The central question is: is the public authority vexed by the request. (56)

https://informationrights.decisions.trib...

Some other bits:

'Parliament has studiously avoided defining what is meant by a ‘vexatious request’. Adopting an exclusive construction of section 12 would necessarily involve cutting down the very wide words used by the legislators.' (39)

https://www.bailii.org/uk/cases/UKFTT/GR...

'Having a request refused as vexatious does not amount to a lifetime ban from making requests on the same or any other topic. It was the responsibility of the Trust to demonstrate that the same factors identified in 2007-9 were also present in 2020 and it was unable to do so.' (35)

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

'However, as yet, we do not see there as being any “test” for vexatiousness in the context of Freedom of Information requests, either in Scotland or in England, and we do not propose to provide one. We shall have something to say about what is meant by “vexatious” but, agreeing with Arden LJ, we are not inclined to attempt a comprehensive definition or to put forward a test. Rather, in the absence of a statutory definition, we propose to interpret “vexatious” by reference to the ordinary, natural meaning of the word, read in its legislative context.' (26)

'[27] There is much with which we would agree in the judgment of Arden LJ in Dransfield.'

https://www.scotcourts.gov.uk/docs/defau...

M Boyce left an annotation ()

You quote:

'Having a request refused as vexatious does not amount to a lifetime ban from making requests on the same or any other topic..'

Well according to Judge Hazel Oliver in my case EA/2021/0064 it DOES, as paragraph 28 of the above clearly and unambiguously states:

'The appellant says in his appeal that he will not make any further requests on the same subject matter {which I will not do}, but there is a clear pattern of repeated requests which indicates that he is likely to send further requests on related topics OR ON NEW TOPICS which WOULD - WOULD- be similarly disruptive and lack value or purpose.'

Judge Oliver is very clearly calling me vexatious and is trying to ban me from ever being able to make a successful request to the ICO on ANY subject ever again.

I will fight to stop this outrageous attack on mine and all our democratic freedoms. Will the Upper Tribunal call this defence of my freedoms vexatious? We will find out.

J Roberts left an annotation ()

Hopefully, we'll find out sooner than later!

Something on PIT ('Platts'):

'12. ...The limits of the scope of PHSO to investigate another Ombudsman is a matter of public interest. While the advice may be old and applicable in limited circumstances it has been incorporated in general guidance to staff of PHSO as being a matter of general applicability in appropriate circumstances and not related to an individual case. It therefore appears to be a statement of the law defining when a citizen can have access to redress. In the circumstances of this case the question of transparency to a citizen as to their rights outweighs the need to protect legal professional privilege.'

https://informationrights.decisions.trib...

M Boyce left an annotation ()

Yes the platts case is interesting, and I've referenced it in my appeals to the UTT.

I suspect the PHSO have appealed it and will use everyone's tax pounds to ensure they win. Ordinary folk can't afford lawyers, but money is no option when your spending everyone else's. It's even more exciting for the PHSO when they make me and you pay for their fancy lawyers to defend the indefensible - their self-declared and shamelessly broadcast law-breaking. The FTT have of course also stated that this self-declared law-breaking is of no interest to them.

Don't you just love British 'justice'?

M Boyce left an annotation ()

And now we have the following DN. The irony of this decision cannot have been lost on the caseworker, and it certainly wasn't lost on me. The same caseworker in DN FS50788785 that lead to EA/2019/0032 swore blind that the 'very exceptional' test was legal. One minute 'very exceptional circumstances' are flavour of the month, and then they are not. The ICO's legal team fought tooth and nail to convince the FTT that the 'very exceptional' test was legal - well it wasn't and it isn't! The FTT would not admit that it was not legal. Will finally the Upper Tribunal?

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

J Roberts left an annotation ()

Indeed!

'28. However it was established in Boyce v IC and PHSO EA/2019/0032 that the public interest in disclosure does not need to be exceptional [89]'

Also this:

'22. In his Guidance1 on section 42, the Commissioner acknowledges that there is a general public interest in openness and transparency and the following factors may add weight to arguments in favour of disclosure...'

One of the factors is:
...
' misrepresentation of advice that was given'

Reminded me of the PHSO review process.

M Boyce left an annotation ()

Yes J Roberts.

I am beginning to despair at the fairness of the Tribunal process. Today I received Directions from Upper Tribunal Judge Nicholas Wikely with regard to the above appeal. I very clearly stated in my Application to Appeal that I did not want an oral hearing AT THIS STAGE - as is my right. The Judge Directed that there should be an oral hearing AT THIS STAGE.

I am quite content to have an oral if necessary, but not yet. What all this means is that I will only get one bite of the cherry - just an oral hearing, instead of a hearing on the papers, and an oral hearing later - if necessary.

I am now going to challenge this.

J Roberts left an annotation ()

I don't have any stats on how often judges direct oral hearings.

'Oral Hearings

Will there be an oral hearing?

If you are refused permission to appeal without an oral hearing you may apply in writing within 14 days for the decision to be reconsidered at an oral hearing.

You or your representative may ask for an oral hearing of your appeal. You should give your reasons so that the judge can take account of them when deciding whether to hold an oral hearing.

If the appeal has been made by another party and you are a respondent and the judge decides to have an oral hearing you will be told about it and will be entitled to attend even if you did not ask for a hearing.

An Upper Tribunal judge can direct an oral hearing even though no one has asked for one.' (p9)

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

J Roberts left an annotation ()

Request to HMCTS re oral hearings:

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

M Boyce left an annotation ()

Interesting request. It could prove quite informative.

In my present case the Upper Tribunal (UTT) APPEARS to be acting entirely unfairly. I specifically and very clearly stated that I did not want an oral hearing at this stage. It is true that the UTT can Direct that an oral hearing is to take place - but implicitly this is when an oral hearing is NECESSARY or requested by any party. An oral hearing should not be imposed on an appellant in a purely punitive way.

The question that I have now asked the Judge to answer is WHY is an oral hearing necessary at this stage?

I can see no possible need for such a hearing at this stage. The issues are relatively simple and uncomplicated and I believe that any judge could quite easily deal with the case on the papers at this stage.

An oral hearing seems designed to deny me a second hearing should it be necessary - and it very often is, as has happened in my Appeal EA/2019/0032 to the UTT. In this case the first UTT judge failed to have regard to the most important evidence - this is a fact, and not an opinion, and I can prove every word of it.

I am seriously beginning to mistrust all tribunals.

In my Appeal EA/2019/0032 the First-tier Tribunal Judge ordered an oral hearing, which I stated that I would attend, but only if the PHSO and/or the ICO also attended. The FTT told me explicitly they had nothing to ask ME at the oral hearing. Both of the Respondents refused to attend, and so magically the Judge then decided than this 'essential' oral hearing did not now need to happen. This left me with grave misgivings about the fairness of the Tribunal process. And so does the latest development.

The Judge may well shout me down - but this is all unfair and I will state it as such. I am not stating that the Judge in the latest development necessarily means to be unfair ( I simply don't know), but that is nonetheless the practical effect of denying me my legal right to two possible hearings.

J Roberts left an annotation ()

'The question that I have now asked the Judge to answer is WHY is an oral hearing necessary at this stage? '

I presume he has identified some parts of your application that he considers require clarification and that an oral hearing is the best way to proceed. I would prefer to deal with any such clarifications in writing.

Something related to oral hearings (after permission has been granted) that might interest you is the conclusion of 'Hendy':

https://www.bailii.org/uk/cases/UKFTT/GR...

Would the judge not be interested in your reasons for preferring to express yourself in writing?

M Boyce left an annotation ()

If the Judge had identified some parts of my application that ''he'' required clarification on, he could and should have asked me for that written clarification. I would be more than happy to clarify anything he wants clarifying.

I have scare quoted ''he'' because Judge Wikeley may well not be the Judge hearing the case. In the Directions the Judge states:

''I DIRECT [his emphasis] that an oral hearing of this application for permission.'

No reason as to why is given.

'The oral hearing may be listed before any Upper Tribunal Judge authorised to sit in information rights appeals.'

So why is a judge Directing an oral appeal, against my wishes, for a case that he may well not be hearing?

It is not a case of preferring to present my case in writing; it is a case of having two bites at the proverbial cherry. This is entirely my prerogative - I am simply wanting to avail myself of the opportunity that is written into the UTT rules. In any case, there is a largely academic distinction between an appeal on the papers and an oral appeal in my case, and I suspect in most cases. At my last oral hearing with the UTT I simply read to the Judge a copy of a written submission. An appellant - usually litigant in person - cannot reasonably be expected to present some kind of virtuoso legally expert unscripted viva.

The Hendy case is an FTT case, and as such the rules are quite different - there is no right to an oral hearing after a submission on the papers has been unsuccessful.

M Boyce left an annotation ()

BINGO!

The Tribunal Procedure (Upper Tribunal) Rules 2008

'Decision with or without a hearing.

34.

(2) The Upper Tribunal MUST [emphasis mine] have regard to any view expressed by a party when deciding whether to hold a hearing to consider any matter, and the form of any such hearing.'

I said I did NOT want a hearing at this time. The Judge decided to ignore my view.

This is a clear breach of the law.

J Roberts left an annotation ()

'This is a clear breach of the law.'

To play devil's advocate:

If the judge has what he considers good reason for directing an oral hearing after having carefully considered your express view that you do not want a hearing at this time is he not acting within the law?

M Boyce left an annotation ()

if the Judge has good reason to impose an oral hearing at this stage, then indeed he is acting within the law.

Why didn't the Directions state why a hearing was NECESSARY at this stage?

My grounds of appeal -stating two errors of law - are very clear and succinct.

If the Judge can convince me that a hearing is absolutely necessary at this stage, then so be it. I'll be very surprised if he can.

We'll find out soon enough.

M Boyce left an annotation ()

So yes, if it is absolutely necessary then an imposed oral hearing at this stage would be legal.

If I consider that I have been unfairly bounced into this oral hearing then I will refuse to attend. Then what?

I cannot be forced to attend. And what of the ICO? They have been invited to attend. Why? What on Earth has the First-tier Tribunal Decision got to do with them? The appeal is against the FTT's Decision on errors of law. The Decision is a full merits review and is therefore not dependent on the ICO's earlier Decision in any way.

What input would the ICO have at the hearing? They would of course loudly cry that the FTT's Decision was infallible and fab-u-lous. What questions would the Judge ask them?

Would they be asked to comment on the FTT's putative errors of law? Presumably, and to what end? This is my appeal, not theirs.

This is farcical. I am not impressed.

J Roberts left an annotation ()

It is unfortunate that the judge has not shared his reasoning with you for directing an oral hearing (presumably there is no obligation on him to do so). He must, however, be aware of the difficulties faced by an unrepresented appellant like you arguing points of law with someone like him i.e. someone whose knowledge of FOI is second to none. The difficulties faced by an unrepresented appellant participating in a UT oral hearing that he has expressly declared he does not want would be apparent to any 'fair-minded and informed observer'.

M Boyce left an annotation ()

I would expect at the very least for it to be a matter of common courtesy for the Judge to say why he had ordered a hearing at this stage, especially given that this is not what I want.

As I have said before, I have no problem with an oral hearing - just not yet. If the Judge wants me to accede to an oral hearing at this stage, then I will insist on another hearing or consideration on the papers by a different judge if the first imposed oral hearing finds against me.

I only want to give myself the best possible chance of success, given that SOME judges simply ignore or overlook the most important evidence that an appellant presents to them - as I know from my own experience.

J Roberts left an annotation ()

Latest UT decision concerning s42 (dismissed):

Robert Callender Smith v IC and CPS

NCN: [2022] UKUT 60 (AAC)
Appeal No. GIA/51/2021

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

FTT decision:

EA/2019/0275V

https://informationrights.decisions.trib...

Information about the appellant (we have previously discussed his FTT appeal somewhere):

https://www.qmul.ac.uk/ccls/staff/callen...

J Roberts left an annotation ()

His first name is Robin and not Robert.

Samuel Ryan left an annotation ()

I understand if any party desires an oral hearing, this will be the process.
I guess you do not have to attend and then could argue as much weight should be attached to your evidence as to another? But in reality ....

M Boyce left an annotation ()

Thanks for your annotation Samuel.

I made it abundantly clear to the Judge that I desired/requested an appeal on the papers at this stage. He could not have accidentally missed this. He has chosen to ignore my request.

You are right that I do not have to attend, and at this stage have no intention of doing so.

The point is that an imposed oral hearing deprives me of my right to a paper consideration, followed by an oral hearing if necessary/desired.

After what has recently happened with regard to my appeal to the Upper Tribunal with regard to case EA/2019/0032 and the Judge's willful ignoring of the most important evidence, I have zero faith in the fairness of any judge or any tribunal.

Jonathan Baines left an annotation ()

Unless I am misunderstanding something, you seem to be suggesting that you are entitled to have the Tribunal make a full decision on the papers, and then, if you disagree, to ask for an (oral) hearing (a second “bite of the cherry”, in your words). That’s not the way it works: if the Tribunal is going to make a decision which disposes of proceedings (other than a strike out or consent order) it must do so at an (oral) hearing. So any “decisions” made on the papers will ordinarily be interim or preliminary decisions which don’t have the status or effect of a final judgment.

M Boyce left an annotation ()

You are wrong in what you are saying Jonathan.

Anyone appealing to the Upper Tribunal can request a consideration on the papers. If that consideration then finds that there is no error of law in the First-tier Tribunal's decision then an appellant can request an oral hearing. That is how it is. I speak both from experience and from the law.

It is true that a judge can direct an oral hearing (as in my case), but most people would expect the Judge to give a reason or reasons for overriding an appellant's request for a consideration on the papers. Quite frankly, it is offensively disrespectful not to give a reason or reasons for directing an oral hearing against my clear and express wishes. That said, I am now more than used to judges ignoring or dismissing anything and everything I say.

It will not go unchallenged.

Jonathan Baines left an annotation ()

Are you talking about the decision in response to an application for permission to appeal (rule 22(4))?

It strikes me that what has happened here, with the judge directing that there be a hearing, is that he has granted permission. Where you say “If that [initial] consideration then finds that there is no error of law in the First-tier Tribunal's decision”, that would be the Tribunal *refusing* the application for permission to appeal. Here, it strikes me, the judge has actually agreed with your application and granted permission to appeal, and then directed that there be a hearing.

If I’m wrong, and I completely accept I might be, can you point to the provisions of the rules which gives effectively two bites at the cherry?

M Boyce left an annotation ()

I do understand the confusion, because it is very unclear and confusing.

The 'Tribunal Procedure (Upper Tribunal) Rules 2008 , rule 22 does not mention information rights cases. Nonetheless such cases are included. This would indeed not be obvious to anyone.

I have made a number of applications to appeal to the Upper Tribunal and all state the law in the following terms:

In my application to appeal to the UTT Case No:GIA/973/2021 Judge Thomas Church states the following:

1. On 29 July 2021 Judge Wright refused permission to appeal the decision of the First-tier Tribunal (GRC) made on 27 June 2020 to the Upper Tribunal on the papers.

2. By an email dated 15 August 2021 the Applicant has requested that his application be reconsidered at a hearing, as is his right under rule 22 (3) and (4) of the Tribunal Procedure (Upper Tribunal) Rules 2008.'

Jonathan Baines left an annotation ()

I think that confirms what I was saying. One needs to distinguish between - on the one hand - an application for *permission* to appeal (rule 21 applies), plus the consideration of that application, (rule 22), and - on the other hand - the substantive appeal (rule 23). Often, a court will roll up the permission consideration and the substantive appeal into one.

In those previous cases of yours, I imagine that what has happened is that the permission to appeal has been refused on the papers, but your rule 22(4)(a) renewed application for permission to appeal has then been heard as part of a rolled-up hearing.

Here, though, the judge is saying "yes, you have permission to appeal, and the substantive appeal itself will be - I direct - at an oral hearing".

M Boyce left an annotation ()

I follow what you are saying, but I still don't agree.

Here is exactly what Judge Wikeley stated:

'Directions for oral hearing of application for permission to appeal.

1. I DIRECT an oral hearing of this application for permission to appeal.

2. The Information Commissioner should be notified of the date, time and place of the oral hearing but need neither attend nor be represented at the hearing. If permission is granted, the Respondent will be invited to make any submission at that stage.

This does not sound to me as if permission to appeal has already been granted.

Jonathan Baines left an annotation ()

Ah, OK, so you have an oral hearing on a permission to appeal application. If that isn't going to be a rolled-up hearing then if permission were granted the Tribunal might then just make a decision without need for further submissions if both parties consent (rule 22(2)(c), but otherwise there will be a further stage (i.e. the substantive appeal, which might be at a hearing or not (rule 34)). It seems to me that whichever way you look at it you will have plenty of opportunity to argue your case, both at permission and at appeal stage (your cherry bites analogy)?

M Boyce left an annotation ()

You state:

'It seems to me that whichever way you look at it you will have plenty of opportunity to argue your case, both at permission and at appeal stage (your cherry bites analogy)'.

That is assuming that permission to appeal is granted, which based on my experience of judges is highly unlikely, no matter how persuasive or water-tight my legal arguments are.

My point is about the two bites of the cherry at the application to appeal stage. By ignoring my request for a paper consideration, the Judge has unfairly only allowed me one bite of the cherry.

In practice this will probably be largely academic, because I do not trust any judge. It is however just possible that there may be one or two judges that are fair-minded and that act with integrity.

In theory it clearly shows that judges cannot be trusted, because my wishes should have been respected. If my wishes are to be side-lined then any judge should have a duty to state why. Any right-minded and fair-minded person would agree.

Jonathan Baines left an annotation ()

I’m still really struggling to understand your concerns, but I doubt that we’ll come to agreement. Permission to appeal stage is exactly that - it’s not the substantive appeal, so it seems absolutely right for the judge to take what he thinks is the optimal case management approach to determining the issue of whether to give *permission to appeal*. Most applicants in my experience jump at the opportunity of an oral hearing - you’ve got one off the bat.

Safe to say I think your reference to judges being untrustworthy is over the top, to say the least. But I fear that saying that will put me in your eyes as not right- or fair-minded, so I’ll sign off here.

M Boyce left an annotation ()

We are indeed unlikely to come to agreement.

Most applicants to appeal would not be thrilled with the prospect of being bounced into something they did not request, did not want and did not receive an explanation for.

My belief that judges are unfair and untrustworthy is based on my experience - it is as simple as that.

J Roberts left an annotation ()

M Boyce,

Would I be right to summarise your position and concerns thus?

1. You expressly stated that you did not want an oral hearing at the permission stage and wanted the judge to base his decision on your written application.

2. The judge directed an oral hearing and provided no reasons for doing so.

3. Normally, an application for permission to appeal is decided on written material ('Bite 1') and someone who is unsuccessful can then have an oral hearing ('Bite 2').

4. By participating in Bite 2 first you fear that if permission is refused then there is nothing further you can do.

5. You consider your fear justified because at an oral hearing (which may be attended by a lawyer representing the IC) you would have to deal with complex points of law. Arguments unfamiliar to you are likely be raised which will, to your detriment, form the basis of the judge's decision.

6. You also consider that it would be preferable to have the judge respond in writing to the specific points of law you have raised in your application because it would provide the clarity that you require for Bite 2, should it be necessary

7. If Bite 2 is held first, there is a risk that your arguments will not be properly dealt with in the judge's decision and other arguments unfamiliar to you will.

J Roberts left an annotation ()

S42 - not upheld - Complaint against the IC - 22/2/22

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

ICO guidance: Legal professional privilege (section 42)

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

M Boyce left an annotation ()

Yes J Roberts your seven points accurately summarise the situation.

I will just add the following for completeness. In my grounds of appeal I stated:

'If this direct appeal on the papers to the Upper Tribunal upholds the First-tier Tribunal decision I will have no option but to request an oral hearing of the appeal.'

I wanted the Judge to be clear about this. Has he taken umbrage? Is this why he has not stated why he has directed an oral hearing AT THIS STAGE against my explicit wishes?

I will not be bounced into something that is not what I want, that is unfair, and that is not explained.

J Roberts left an annotation ()

'Has he taken umbrage?'

I am in no position to comment on the subjective state of the judge's mind. I would guess, however, that he will eventually provide reasons for his decision to direct an oral hearing at the permission stage. I further guess that he will justify his decision with reference to the overriding objective of the Rules 'to enable the Upper Tribunal to deal with cases fairly and justly':

https://www.legislation.gov.uk/uksi/2008...

M Boyce left an annotation ()

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

The above decision is very interesting. Paragraphs 3 and 4 contrast tellingly with the same judge's direction for an oral hearing in my application to appeal.

He reproaches the Second Respondent for not providing a reason for wanting an oral hearing. He provides no such reason to me.

He states an oral hearing is unnecessary. I believe it is unnecessary in my case at the moment.

He states it is disproportionate and time-consuming. As in my case.

i asked the Judge two weeks ago to explain why he has directed an oral hearing against my wishes. There has been no reply.

I will be referring to the above at whatever appeal I am forced into when I finally get the chance.

J Roberts left an annotation ()

The judge's approach in 'RR' seems very different at first blush. It was another judge, however, who granted permission to appeal in this interesting and complicated case. I'm not sure that 'PR', the Second Respondent who requested an oral hearing, could have added anything to the legal argument by appearing in person that she could not have added in writing. The first judge had identified the legal questions that required answering; the DWP supported the appeal and 'PR' provided no reason for wanting an oral hearing.

Despite my reservations about your comparator, I still consider your concern about the judge's direction in your case to be legitimate. If you have not given reasons challenging the judge's direction might not this omission be referred to by the judge as a ground for refusing your request not to hold an oral hearing at the permission stage?

M Boyce left an annotation ()

I did give reasons challenging the Judge's Direction: I stated that I regarded it as unfair because it denied me two possible bites of the cherry, and it was unfair because it is not what I want, and it is unfair because the Judge has given no reasons for his actions.

Ultimately, it is for the Judge to make a case for his imposition of an oral hearing against my wishes; it is not for me to make a case why this imposition should not occur - although I have done, and will elaborate further if I get the chance.

His actions are by any consideration contrary to the principles of natural justice: all judges in a liberal democracy are required to give a reason or reasons for their actions or decisions.

J Roberts left an annotation ()

It seems that a judge not providing a reason for directing an oral hearing at the permission stage is consistent with the 'overriding objective':

https://www.legislation.gov.uk/uksi/2008...

It may be the judge's view that providing a reason for his direction at the time he gave it would be to defeat the aim of the direction. What I mean is that by providing written details he would be undermining his aim of 'avoiding unnecessary formality and seeking flexibility in the proceedings'.

M Boyce left an annotation ()

I'm all for informality and flexibility, but I honestly can't see how the Judge's actions represent informality and flexibility: imposition without explanation represents neither.

Sooner or later I will get some sort of explanation.

I will keep you updated.

J Roberts left an annotation ()

Thanks.

It's very important that people can see how things are in practice.

M Boyce left an annotation ()

'JUDGE’S OBSERVATIONS

1. I directed an oral hearing of this application for permission to appeal in Directions
signed off on 3 March 2022.

Mr Boyce has subsequently e-mailed the UT office,
stating:

“I made it very clear in section F of my Application to Appeal that I did not want
an oral hearing at this stage. The Judge has inexplicably ordered an oral hearing at
this stage. I regard this as unfair, largely because it denies me two possible bites of
the cherry - a hearing on the papers, and then an oral hearing if necessary.”

2. Mr Boyce is labouring under a misapprehension. An applicant’s answer to the
question in Box F of Form UT11 about whether s/he wishes to have an oral hearing of
the application is not determinative. The Judge has a broad discretion on whether to
direct an oral hearing, taking into account (but not being in any way bound by) the
parties’ views (see rule 34).
There is also no right to ‘two bites of the cherry’. If refused
on the papers, an applicant may request an oral reconsideration but an application
may always be struck out without a hearing under rule 8.

3. In this case I took the view that overall it would be a better use of scarce judicial
resources to direct an oral hearing at the outset. That decision involves no issues of
unfairness.

Judge Wikeley

22 March 2022.'

It's not me that is labouring under an misapprehension; that honour goes to his Honour. He is wrong on every level and on every point. I will discuss this shortly and where I go next.

Any views?

J Roberts left an annotation ()

M Boyce,

The following relates to a hearing AFTER permission to appeal has been granted (social security). I can't find anything specific to your circumstances:

'11. There is no right to an oral hearing in these cases. I have had regard to the stated reasons for the request as Rule 34(2) requires, but it is not appropriate to commit scarce public resources to one (either those of the Upper Tribunal or those of the Secretary of State in pursuing the appeal) in circumstances where Ms B and her representative have not raised any point of disagreement on the relevant law for the Upper Tribunal to adjudicate upon.'

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

Rule 34

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

(p29)

'In this blog, I look at the situation where permission to appeal to the Court of Appeal has been refused by a single judge on the papers, and the possibilities of having that decision re-opened.'

http://disputeresolutionblog.practicalla...

J Roberts left an annotation ()

Comment 12 March:

'2. By an email dated 15 August 2021 the Applicant has requested that his application be reconsidered at a hearing, as is his right under rule 22 (3) and (4) of the Tribunal Procedure (Upper Tribunal) Rules 2008.'

This relates to a right to REQUEST a reconsideration.

'11. There is no right to an oral hearing in these cases.'

It seems that it is down to the discretion of the judge - an appellant has no right to an oral hearing and, presumably, has no right to have their appeal considered on the papers either.

M Boyce left an annotation ()

Yes J Roberts, your analysis is quite right: there is no ABSOLUTE right to either a paper consideration or an oral hearing. BUT, applying for either is more than just a request - it is a qualified right, as stated in law. It can be qualified by a judge's discretion, but this discretion must surely have to be fair discretion.

Judge Wikeley is using the scarce resources card to deny me both a choice of either a paper hearing or an oral hearing, and then a possible hearing after a paper consideration. This is unfair. His judgement is entirely capricious, entirely irrational and entirely unfair. It is based on judges having scarce resources. They ALWAYS have scarce resources - always and in every case. Plus a paper consideration is quicker and cheaper than an oral hearing. An oral hearing at this stage is pointless: it neither saves time or money. He implicitly assumes that a paper consideration will fail - it will if he considers it!

The judge is simply being nasty. I will appeal his Directions to the Chamber President, who in my opinion will of course pat his mate on the back and say well done pal.

M Boyce left an annotation ()

In continuation to my last comment, I believe that the Judge's refusal to allow me a paper consideration because it is cheaper to have an oral hearing is the first case EVER in any Tribunals' history. Oral hearings are more expensive, take longer to organise, and in this case pointless as the issues are purely on putative errors of law and not substantive issues.

If anyone can provide a link to a single case that contradicts this then I would be most grateful - and most surprised.

J Roberts left an annotation ()

Judge Ward:

'11. There is no right to an oral hearing in these cases. I have had regard to the stated reasons for the request as Rule 34(2) requires, but it is not appropriate to commit scarce public resources to one...'

Judge Wikeley:

'3. In this case I took the view that overall it would be a better use of scarce judicial resources to direct an oral hearing at the outset.'

The same argument leads to very different conclusions – ah, context!

I see your predicament. If you attend the oral hearing the difficulties previously discussed will become manifest. If you don't, and given that the judge considers your attendance necessary to decide the matter, then how could the judge possibly grant permission? If you then requested an oral hearing, how could your request not be struck out given that you chose not to attend the oral hearing directed by the judge?

M Boyce left an annotation ()

You state:

'...the judge considers your attendance necessary to decide the matter...'

But he doesn't, and he's never said this. If he had it would have been a game-changer. If my attendance at an oral hearing was NECESSARY then I would readily accede to his Direction - but it categorically is not necessary.

The Judge demands an oral hearing instead of a paper consideration because,in his words;

'IN THIS CASE [my emphasis] I took the view that overall it would be a better use of scarce judicial resources to direct an oral hearing at the outset.'

an oral hearing is completely UNNECESSARY. He is dictating it on purely financial grounds - scarce resources.

This is not a good enough reason to force me into an oral hearing against my express wishes.

M Boyce left an annotation ()

So why would an oral hearing be NECESSARY in this case?

The short answer is it wouldn't be.

The longer answer is as follows:

At the oral hearing I would simply read aloud exactly what was in my grounds of appeal on the application to appeal. I wouldn't ask any questions and neither would the Judge - this is simply an appeal on alleged errors of law and nothing else. This is what happened on my last oral hearing with Judge Thomas Church.

So the oral hearing would be EXACTLY the same as the information that would be considered on the papers.

So why is a verbal/oral/reading hearing NECESSARY?

It isn't. I know it isn't and the Judge knows it isn't.

The Judge simply wants to only allow me one bite of the cherry, and that bite will be in front of him and there will be no possible further 'bite' in front of any other judge, because of 'scarce resources' in my case.

I wonder what the outcome would be? Any guesses?

J Roberts left an annotation ()

'At the oral hearing I would simply read aloud exactly what was in my grounds of appeal on the application to appeal. I wouldn't ask any questions and neither would the Judge - this is simply an appeal on alleged errors of law and nothing else. This is what happened on my last oral hearing with Judge Thomas Church.'

I had assumed that the oral hearing would permit the judge to seek clarification of your legal arguments. Also, if a lawyer representing the ICO was in attendance, I had assumed that the judge would take into account their arguments and, perhaps, ask you to respond to them.

'If anyone can provide a link to a single case that contradicts this then I would be most grateful - and most surprised.'

I have no memory of a UT decision in which the judge directed an oral hearing at the outset. Not all UT decisions, however, are published. Maybe cases in which oral hearings are directed at the outset are less likely to be published.

'I wonder what the outcome would be? Any guesses?'

Most appellants do not get the outcome they want. I am not optimistic.

M Boyce left an annotation ()

No I'm not optimistic either. The Decision has already been made.

There is nothing that needs clarifying in my legal arguments. I have made my legal arguments as best I can and no amount of verbal gymnastics on my part is going to improve on that. Also the ICO have not been asked to attend, and they wouldn't attend even if they had been asked - they already know it's in the bag.

Judge Wikeley made it quite clear that the role of the Tribunal is confined solely to correcting any errors of law made by the First-tier Tribunal - it is not a detailed factual or inquisitorial investigation of the case.

I have got nothing to ask Judge Wikely (for he will be doing the oral hearing for sure), and even if I had he would be less than forthcoming in any answers.

I will inform the Chamber President this weekend that I regard my being forced into an oral hearing instead of my preferred paper consideration to be unfair. I will state that I have no intention of taking part in any oral hearing at this stage.

If the Upper Tribunal want to behave unfairly, then let that be on the record. I will not be bullied.

J Roberts left an annotation ()

Judge Wikeley wrote:

'3. In this case I took the view that overall it would be a better use of scarce judicial resources to direct an oral hearing at the outset. That decision involves no issues of unfairness.'

You wrote:

'So the oral hearing would be EXACTLY the same as the information that would be considered on the papers.'

Is this a fair summary of your position?

By not having a written decision from the judge based solely on the papers there is nothing further you can do should the judge refuse your application at the oral hearing he has directed. A decision on the papers would provide you with the judge's reasons which you could then use to challenge any refusal by requesting an oral hearing yourself. The weaker the judge's reasons, the stronger your case for having your request for an oral hearing granted.

Judicial Resources

The judge's 'scarce judicial resources' argument may be underpinned by his firm belief that your arguments do not hold water and that you would request an oral hearing after he refuses your request regardless of the soundness of his reasoning. But if he thinks this, then few additional judicial resources would be required for your subsequent doomed REQUEST for an oral hearing. I'm confused!

M Boyce left an annotation ()

Yes an oral hearing at the outset would be EXACTLY the same as a paper consideration: I have nothing further to add and can proffer no further legal explanations - I am not a legal expert.

The judge's 'scarce judicial resources' argument is underpinned by HIS arguments holding no water - he will refuse my application no matter how strong or compelling my arguments are. We are not on a collision course; we have already collided.

J Roberts left an annotation ()

Here is an example of Judge Wikeley using the scarce judicial resource argument to strike out an application:

'Crossland v Information Commissioner (Recusal, Strike Out and Excluded Decisions (Judicial Review))[2020[ UKUT 264 (AAC)'

'The strike out warning

2. I signed off directions explaining why I was minded to strike out this application on 9 January 2020 (issued by the office on 4 February 2020). The background to, and the reasons for, that proposal were as follows:

‘Introduction

1. This matter has a convoluted history. However, for the reasons that follow, I am not at present satisfied that any further scarce judicial resource should be devoted either to holding an oral hearing of this application for permission to appeal or to further detailed consideration of the application itself.

2. I am therefore proposing that the application should be struck out on the basis that (i) the Upper Tribunal has no jurisdiction to determine the application; and/or (ii) the application has no reasonable prospects of success. Mr Crossland is at liberty to make representations on this proposal in accordance with the Directions that follow below.'

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

M Boyce left an annotation ()

Thank you for highlighting this very important case J Roberts.

It will certainly inform my email letter to the Chamber President, which I will send today and put a copy on here.

Judge Wikeley in my case makes the incredibly specious, if not risible, argument (one of the arguments) for the imposition of an oral hearing as:

'If refused on the papers, an applicant may request an oral reconsideration but an application may always be struck out without a hearing under rule 8.'

Yeah, and pigs may fly - but in reality they never do.

For an application to be struck out it must be utterly bound to fail, that is have no possible prospect of success. So, why would my application not be struck out at the earliest opportunity? Would a judge considering such a hopeless application on the papers not strike out such a hopeless application? Of course they would and it would NEVER get to the reconsideration stage in the first place. Judge Wikeley's argument is utterly bound to fail. He would have already proposed to strike out my application if he believed he could succeed.

I will ask the Chamber President to strike out my appeal without delay if they believe it is so utterly bound to fail.

Let's see.

M Boyce left an annotation ()

Complaint to the Upper Tribunal Chamber President –

I would like to make a formal complaint about the actions of Judge Nicholas Wikeley with regard to my application for permission to appeal (Appeal No. UA-2021-000829-GIA).

I clearly stated that I wanted a paper consideration.

I want a paper consideration because I feel more comfortable and more able making my arguments in writing. An oral hearing for me would be a very last resort - not a first.

Judge Wikeley then on 03 March 2022 Directed an oral hearing, against my wishes.

I subsequently emailed the Upper Tribunal to express my grave concern about this.

I do not and will not consent to an oral hearing at this stage.

Judge Wikeley replied on 14 March 2022 and stated that there is no right to a paper consideration, and then a reconsideration on the papers if I thought it was necessary (‘two bites of the cherry’).

He is right that there is no absolute ‘right’ to either a paper consideration or an oral reconsideration.
An applicant may request either or both of these, but is not guaranteed to receive either or both.

In his letter of 14 March 2022 the Judge states the following:

‘If refused on the papers, an applicant may request an oral reconsideration but an application may always be struck out without a hearing under rule 8.’

Yes, but this scenario is highly unlikely: no perceptive judge would allow an utterly hopeless application on the papers to possibly proceed to the oral reconsideration stage. Judge Wikeley is implying that my application may be struck out if it reached the reconsideration stage. If my application is so hopeless it should be struck out at the earliest opportunity, and not down the line at the reconsideration stage.
If you consider my application is so utterly hopeless then you should strike it out now. Obviously, I don’t believe it is utterly hopeless.

In paragraph 3 of the Judge’s Observations letter of 14 March 2022 he states:

‘In this case I took the view that overall it would be a better use of scarce judicial resources to direct an oral hearing at the outset. That decision involves no issues of unfairness.’

I regard it as unfair to me. It denies me a possible chance of an oral reconsideration should my application on the papers fail.

I also regard it as potentially unfair to others. If this ‘scarce resources argument’ prevails it will open the floodgates to other judges to impose oral hearings on unwilling applicants. This will be a very significant and publicly important move: supposed economic expediency will trump the right to a fair judicial process.

I did state in my application that if my paper consideration were to fail then I would apply for an oral reconsideration as is my right (right to apply, not necessarily to be accepted).

For context I must very briefly explain why I stated this. I appreciate that you will not and cannot comment on the following, but it is necessary for me to outline the reasons for my actions.

First Tier Tribunal Judge Moira Macmillan completely failed to have any regard to one of my most important grounds of appeal in my case EA/2019/0032. Judge Stewart Wright of the Upper Tribunal and then Judge Thomas Church of the Upper Tribunal equally failed to have any regard whatsoever to what I stated in clearly capitalised form was THE MOST IMPORTANT ground in my appeal.

This was a clear error of law. I don’t want any judge in this application to also completely ignore the most important grounds of my appeal: if the Judge in a paper consideration ignores the evidence, then at least an oral reconsideration allows me a chance to try again – though of course the reconsideration Judge may also ignore the evidence too, as happened above. But at least I will have tried my best and done everything I could to get a fair consideration/hearing.

In this case I asked for a paper consideration. My wishes have been overridden by the Judge’s ‘scarce judicial resources’ argument.

The Judge’s ‘scarce judicial resources’ argument is unfair to me. A paper consideration is actually LESS demanding on scarce judicial resources than is an oral hearing. If there were to be an oral reconsideration then of course that would involve further use of scarce judicial resources. But an oral reconsideration will hopefully not be necessary. I certainly would strongly prefer it not to be necessary. I would only request an oral reconsideration if my arguments were not properly addressed. I would not do it if they were. I have only ever requested an oral reconsideration once (as above) and that was done with great reluctance, but I simply could not ignore the ignoring of what I regarded as the most important evidence (the Judges could have stated that the evidence wasn’t that important, but they all chose to completely ignore it).

I am not familiar with any other case where an applicant has had an oral hearing imposed on them instead of their preferred paper consideration solely because of the scarce judicial resources argument. I would be very grateful if you could let me know, to your knowledge, if this argument has been used previously.

I would readily accede to an oral hearing at the outset if such a hearing were NECESSARY (not just supposedly less resource intensive) in terms of the need to provide clarification, intercession etc.

I believe no such clarification or intercession is necessary, and I have nothing further to add beyond the information given in my application for permission to appeal. This is an appeal on errors of law and errors of law only, and it simply does not require an oral hearing at this stage. If it did the Judge would have stated so.

J Roberts left an annotation ()

"Judge Wikeley in my case makes the incredibly specious, if not risible, argument (one of the arguments) for the imposition of an oral hearing as:

'There is also no right to ‘two bites of the cherry’. If refused on the papers, an applicant may request an oral reconsideration but an application may always be struck out without a hearing under rule 8.'"

I interpreted his words not as an argument but as a general statement of fact. Your having no 'right' to two bites of the cherry is strictly correct in the sense that if refused on the papers the right you have is to request an oral hearing and not to have one. I think, though, that the right to request an oral hearing could reasonably be characterized as a second bite.

"Would a judge considering such a hopeless application on the papers not strike out such a hopeless application?"

After finding the 'strike out' decision this question has been on my mind. The judge's view might be that certain clarifications could nudge your application into "reasonable prospect of success" territory and that an oral hearing at the outset is the best way to resolve the matter. If so, it places a considerable burden on you, an unrepresented appellant expected to argue points of law orally. Of course, I have no way of knowing what the judge's view actually is and my characterization of it may be far off the mark.

J Roberts left an annotation ()

'Dransfield -v- Information Commissioner (Section 50(2): Jurisdiction) [2020] UKUT 346 (AAC)'

Judge Wikeley dismissed this application for an oral hearing:

'(ii) Application for an oral hearing (p 41)

22B. The position under the Upper Tribunal’s procedural rules, vesting this Tribunal with a discretion, must be read against the background of the common law. In broad terms the position at common law is that a case can be determined without an oral hearing unless that would be unfair because, for example, oral evidence is required or the case is complex. The present appeal is not a case in which oral evidence as to the facts is required, for the reason identified by the Commissioner. Notwithstanding the Commissioner’s own somewhat guarded support for the application for an oral hearing, nor do I accept this case is unduly complex. The underlying and fundamental issue at stake – the question of the FTT’s jurisdiction – is a narrow issue of law and relatively straightforward... Having considered the Appellant’s detailed written submissions, I am not persuaded that contested oral argument could make any material difference to the outcome. I dismiss the application for an oral hearing.' (p 42)

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

M Boyce left an annotation ()

If the Judge wanted clarification he would most certainly have said so: reticence is not his style.

Yes the Dransfield case shows that paper considerations are the default position. Oral hearings are more expensive, more time-consuming, more stressful (for some applicants), and they drag the appeal process on for much longer. In short, they should be a 'last' resort and not a first resort.

I believe that my case will become a landmark case. It 'appears' to be the first and only case where a judge is trying to force a reluctant applicant into an oral hearing JUST to POSSIBLY save a few quid.

We will see what the Chamber President has to say. I have said that I did not and will not consent to an unnecessary oral hearing at this stage. That position will not change.

J Roberts left an annotation ()

'It is also the case, of course, that the application of rule 34 in any given case must be read in the light of the overriding objective of dealing with cases fairly and justly (rule 2).' (p 41)

I look forward to reading the judge's reasons to see how they are consistent with rule 2. You have made it clear that you do not want an oral hearing at the outset and I do not see how significant judicial resources are to be saved by having one.

Here is an example of a case involving an oral hearing for permission:

'Vesco v (1) Information Commissioner and (2) Government Legal Department [2019] UKUT 247 (TCC)'

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

The appellant certainly requested an ORAL HEARING but did she also request the ORAL HEARING FOR PERMISSION?

'6. I granted permission to appeal after an oral hearing of the application... Neither GLD nor the Commissioner requested an oral hearing, but the Requester at the end of her written submission said “It would be appreciated if a hearing could be held as written work is time consuming”. As I am deciding the appeal in the Requester’s favour, heard from her at an oral hearing for permission on 26 March 2019, and have extensive written submissions from her before me, I do not consider that an oral hearing would add anything of substance. I am satisfied I am able to decide the appeal fairly on the papers.'

M Boyce left an annotation ()

Yes, all I want is for my application to be dealt with fairly and justly. I don't believe that my request is unreasonable. I think I have made a fair case for my application to be dealt with according to my wishes.

We will see what the Chamber President thinks.

J Roberts left an annotation ()

Requested by the appellant or directed by the judge?

'NOTICE OF DETERMINATION OF APPLICATION FOR PERMISSION TO APPEAL
 
1. This is an application by the information requester for permission to appeal to the Upper Tribunal against a decision of a First-tier Tribunal made on 3 April 2014. For the reasons set out below I refuse permission to appeal.
 
2. I held an oral hearing of the application on 16 November 2015 at which the Applicant, a former solicitor and deputy district judge, appeared in person. Neither of the Respondents were represented, I having indicated that they need not be.

23 . In my judgment it would not in all the circumstances of this case be right to give permission to appeal. The particular considerations which weigh with me in reaching that conclusion are:
...

(c) It cannot be denied that the need to resist an appeal would result in the expenditure of substantial costs by at least one public authority (the Council), and possibly also the IC.'

PC v IC & Steyning Parish Council [2015] UKUT 650 (AAC)

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

J Roberts left an annotation ()

Some may be confused by my use of the word 'appellant' to describe those seeking permission to appeal. Although in the 'Vesco' decision Mrs Vesco is identified as the 'Appellant' on the first page, the judge refers to her as the 'Requester'. In 'PC', Mr Campbell is identified on the first page as the 'Applicant' and this is the term used by the judge to describe him. In 'Dransfield' (Judge Wikeley – the lead information rights judge), Mr Dransfield is identified as the 'Appellant' on the first page and is referred to as the 'Appellant' throughout.

J Roberts left an annotation ()

Regarding 'PC':

'13. ...I considered that those reasons could best be explored at an oral hearing of the application for permission.'

M Boyce left an annotation ()

My case is fundamentally different to the 'PC' case you have mentioned. In the PC case an oral hearing was directed or agreed upon in order to explore reasons/issues. That is perfectly reasonable.

The Judge ordered (directed) an oral hearing in my case, not to explore issues, but to POSSIBLY save a few quid.

I received an email acknowledgement on Sunday evening that my complaint had been passed to the Chamber President. I expect the President to simply say that Judge Wikeley can do as he pleases.

I will never agree to an unfair process - never. The Judge says it is not unfair, but I disagree. The only person that will be attending the oral is the Judge.

J Roberts left an annotation ()

'The Judge ordered (directed) an oral hearing in my case, not to explore issues, but to POSSIBLY save a few quid.'

Although Judge Wikeley may not have explicitly stated that he wants to explore issues, it may be his view that by exploring certain issues, judicial resources are likely to be spared. In 'PC', we do not know what information was provided to the appellant at the time the judge decided that an oral hearing be held at the permission stage. In his decision, however, the judge included this:

'23. (c) It cannot be denied that the need to resist an appeal would result in the expenditure of substantial costs by at least one public authority (the Council), and possibly also the IC.'

This observation implicitly refers to judicial resources in my view.

One big difference with PC is that the appellant was a retired district judge – someone used to oral legal argument!

The only reason Judge Wikeley has provided relates to judicial resources (Rule 34(2)). Why he thinks what he does may only be revealed after he decides on the oral hearing for permission. He may also reveal why exactly he thinks dealing with your application in writing would be a significant drain on judicial resources.

If you don't attend the oral hearing for permission what happens?

M Boyce left an annotation ()

What you say is possible, but I shouldn't have to try and second guess what a judge is trying to achieve by his actions.

I believe the Judge simply wants to deny me 'two bites of the cherry'.

No one else has ever been denied this, to my knowledge.

Anyway, I refuse to play his game and I will not consent to his demand.

I don't know what will happen now. If he wants to try and strike out my application then let him try.

J Roberts left an annotation ()

The judge may refuse your application for permission to appeal (not strike it out). His decision may include a reference to the fact that you chose not to attend the oral hearing for permission. The End? Of course, the outcome may be exactly the same if you do attend. You're in an unfortunate position.

I was struct by this paragraph of your complaint to the Upper Tribunal Chamber President:

'First Tier Tribunal Judge Moira Macmillan completely failed to have any regard to one of my most important grounds of appeal in my case EA/2019/0032. Judge Stewart Wright of the Upper Tribunal and then Judge Thomas Church of the Upper Tribunal equally failed to have any regard whatsoever to what I stated in clearly capitalised form was THE MOST IMPORTANT ground in my appeal.'

I can understand your sense of injustice. It is difficult for me to believe that three judges could fail to refer to 'THE MOST IMPORTANT' ground in your appeal. Did none of them devote even a sentence to dismissing it?

M Boyce left an annotation ()

The Judge may well refuse my application to appeal because I will not agree to be forced into an unnecessary oral hearing. So be it.

Judge Macmillan and Judge Church REFERRED to the most important ground of appeal (the importance that disclosure of the legal advice could have on informing the progress of the Public Service Ombudsman). Neither discussed it - not a single word. They were required to have REGARD (analyse) the important evidence, not just say that I said it was important.

Judge Wright neither referred nor discussed this evidence - not a single word.

Judge Macmillan ignored the evidence and Judge Wright and Judge Church did exactly the same - despite my increasing alarm at what was happening. Judge Church states in paragraph 16:

'The First-tier Tribunal clearly had a great deal of material before it. It had to consider ALL of the relevant material and ASSESS it....'

Yes, BUT IT DIDN'T. He knows it didn't, Judge Wright knows it didn't, Judge Macmillan knows it didn't, I know it didn't, and the world at large knows it didn't.

J Roberts left an annotation ()

This is from a social security appeal, but it shows that Judge Wikeley has a good eye for spotting an ignored argument:

'12. ...She had made the point very shortly and very clearly. She had specifically referred to regulation 33(2) in the notice of appeal. She really could not have made the point any more clearly and yet for some reason her argument was repeatedly ignored. Reading the grounds of appeal is always a good place to start.'

MW v SSWP (ESA) [2018] UKUT 304 (AAC)

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

M Boyce left an annotation ()

This is an excellent find J Roberts. I will certainly be using this in my further dealings with Judge Wikeley.

It shows how those in charge REPEATEDLY IGNORE the evidence (the Judge's words), and that includes judges at both the First-tier Tribunal and the Upper Tribunal.

That is why I want a paper consideration, and then an oral hearing IF and only if, the Judge ignores the evidence - as they are apt to do.

He cannot say that judges do not ignore the evidence now when he himself has publicly stated that they do.

J Roberts left an annotation ()

HMCTS does not deal with requests concerning the UT so no information was provided in response to my request concerning oral hearings for permission:

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

M Boyce left an annotation ()

They don't hold information in order that they will never have to disclose it. Job done.

Judge's can and will do whatever they like, however unfair it is.
That includes willfully ignoring the most important evidence that an appellant/applicant submits. What better way of dismissing an appeal than to completely ignore the important evidence? Job done.

J Roberts left an annotation ()

This example (social security) shows that a judge need not engage with the details of an argument if her reasons are sufficient:

'16.      The judge did not engage with the details of the claimant’s argument, but her short reasons dealt clearly and correctly with the essence of the matter. She made the right decision and gave adequate reasons for doing so.'

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

M Boyce left an annotation ()

Section 42 FOIA cases are different: the Tribunal is required to have regard to the most important evidence. Completely ignoring that evidence is not having regard to it.

M Boyce left an annotation ()

Below is what I have today sent to Judge Wikeley. Lets see what he says.

Judge Wikeley and the Directed oral hearing instead of a paper hearing –

Below is explained the main reason why I requested a paper consideration instead of an oral hearing. The other reasons are that I feel more comfortable and more able making my case in writing; I also believe that a paper consideration would have been much quicker and cheaper.

Direct appeal to the Upper Tribunal for Appeal EA/2019/0032 and Judge Stewart Wright –

Under ground 4, ‘Failure to have regard to material evidence, part (ii) I stated exactly the following:

‘Public Service Ombudsman –
In paragraph 42 of the Decision it states:

‘The Appellant further submits that publication of the legal advice would support the objective of an Ombudsman being a modern, fair and transparent organisation. He describes the creation of a review process by the PHSO as an obstacle to the ability of parties affected by a PHSO decision to bring judicial review proceedings, since reviews are rarely completed within the three-month time limit’ [and reviews are not justiciable because they are not legally permissible].

I had discussed at some length throughout my submissions to the Tribunal, and particularly pages 27-29 of my first submission to the Tribunal just how crucial publication of the legal advice on the PHSO review process could be in pushing forward the agenda for the new proposed Public Service Ombudsman (PSO). Some later evidence I submitted was not even acknowledged, let alone considered (doc.1). Indeed, I regarded and regard this as so important that it is THE single most important public interest factor for disclosure of the legal advice. The new PSO would obviate the need for a non-legal and highly ‘muddled’ review process, because instead it would allow the PHSO to re-open flawed final decisions (doc.2) – something that the PHSO had abandoned in 2015-16 because legal advice it had obtained and legal rulings (the ‘ex parte Monica Dyer High Court of Justice 1993’ decision) had confirmed it had no legal capacity to undertake re-opening of its final decisions because it was functus officio at the issuance of its final decisions.

I also made it clear in my submissions that the PHSO was also functus officio with regard to its reviewing of its decisions, a fact that the PHSO publicly acknowledge. The Tribunal made a further error of law by not taking this into account in its consideration of its public interest balance. I agree that it is not within the remit of the Tribunal to decide what processes used by the PHSO are legal or are not legal, but it is within their remit to consider the public interest in the fact that the Ombudsman are continuing to review decisions against their own legal advice and equally against their public pronouncement that reviews are not legally allowed.

The PHSO have fully welcomed the proposed replacement of itself with this new modern fairer, more legally empowered and more efficient PSO. The Parliamentary and Constitutional Affairs Committee (PACAC) have also fully welcomed this proposal (doc.3). The major fly in the ointment is the Government, who over the last 6 years or so have misunderstood this issue, claiming that the PHSO already have the legal power to re-open decisions by virtue of this draft legislation for the PSO (doc.3), and have repeatedly kicked Ombudsman reform into the long grass. This crucial reform has been called for almost from when the PHSO was established over 50 years ago, and every year the Government ignore these calls for reform. The Government have recently confirmed that they have no intention of introducing legislation for the creation of the PSO anytime soon, despite the serious criticisms and admonition by PACAC (doc.1).

The PHSO publicly admit that their review process is not legal and they have abandoned their re-opening process for the very same reason. Put simply, the PHSO are completely hamstrung by their outdated , inefficient and unfair legislation, a fact made patently clear by Judge HH Shanks in Appeal EA/2019/0034. The publication of the legal advice could be very important in showing to the Government and the public that this legislative reform is absolutely crucial for a modern Ombudsman service.

The Tribunal have completely failed to have regard to this material evidence. The publication of the legal advice about the review process is one of the strongest public interest factors imaginable in this case and for the reasons I have outlined. The Tribunal not having regard to this evidence represents a material error of law. This is an arguable error of law because this information is of such importance in and around the public debate about Ombudsman reform and the vital role that the Ombudsman plays in society. This fact is also reinforced by the recent decision of ‘David Platts v Information Commissioner (EA/2020/0276), where the Tribunal uphold this appeal, as summarised in paragraph 12 of that appeal:

‘In the circumstances of this case the question of transparency to a citizen as to their rights outweighs the need to protect legal professional privilege.’

The First-tier Tribunal might argue that they have had regard to the material in my case, but simply stating that I submitted that the publication of the legal advice would support the objective of a modern, fair and transparent Ombudsman is my discussion, my reasoning and my conclusion – and not the discussion, reasoning or conclusion of the First-tier Tribunal. They have completely failed to have REGARD (analyse) this very important material evidence, and this is not just arguably, but is undeniably, a material error of law.’

So what does Judge Wright have to say about this ground of appeal?

Absolutely nothing. Not a single word.

He couldn’t have simply overlooked this ground of appeal because it was also supplemented with a number of important documents (documents 1-3). He MUST have chosen to completely IGNORE this evidence. He had a legal duty to address this important ground of appeal.

I regard this as a slap in the face of ‘justice’.

In my oral renewal of the application to appeal with Judge Thomas Church I stated the following (also provided as an exact transcript) under ground 3:

‘The First-tier Tribunal failed to have any regard whatsoever to the crucial issue of the importance that disclosure of the withheld legal advice could have on informing the public debate around the replacement of the PHSO with a new Public Service Ombudsman (PSO). This new PSO would have much wider powers, and particularly the power to re-open completed but flawed investigations.
I repeatedly stressed throughout most of my lengthy submissions to the Tribunal just how important this was: my first submission to the Tribunal (pages 27-29); my second submission to the Tribunal (pages 9-10); my fourth submission to the Tribunal (page 4); and my sixth submission to the Tribunal (page 1-2). I also stated in my direct appeal to the Upper Tribunal to Judge Wright that I regarded this as THE single most important factor favouring disclosure of the withheld material. The First-tier Tribunal, and later the Upper Tribunal, completely failed to have any regard to any of this evidence.

Why is this a material error of law?

If this evidence had been considered by the Tribunal it could arguably have tipped the balance in favour of disclosure.’

So what did Judge Church have to say about this ground of appeal?

He states:

‘In respect of Ground 3, the First-tier Tribunal clearly had a great deal of material before it. It had to consider ALL OF THE RELEVANT MATERIAL AND ASSESS IT AND MAKE FINDINGS BASED ON THE EVIDENCE. It had to consider the submissions made and reach a decision by applying the relevant law to the facts it found on the evidence. Having done so it had to explain its decision to the standard of ‘adequacy’. The First-tier Tribunal was not required to deal with every submission or every item of evidence. It had to explain in sufficient detail what decision it made and how and why it reached its decision. When the FtT Decision is read as a whole it is adequate to explain these matters. This ground disclosed no arguable error of law.

If Judge Wright’s decision was a slap in the face, then Judge Church’s decision is nothing less than an utter betrayal of the trust that appellants place in judges. If we cannot trust judges then who can we trust?

Judge Church states himself that the Tribunal had to ‘consider all of the relevant material and assess it and make findings on the evidence.’ Yes, but quite plainly it DIDN’T do that with regard to this ground of appeal. If Judge Church considered this ground to be irrelevant/unimportant/peripheral, then he had a duty to state so, and so did the First-tier Tribunal. Simply ignoring evidence is not good enough.

Judge Macmillan, Judge Wright and Judge Church all completely ignored this important evidence.

Is it any wonder that I now do not trust ALL judges? That is why I want a paper consideration, and then an oral renewal if, and only if, the judge considering this appeal on the papers also ignores the most important evidence.

My view (which is supported by the evidence above) that SOME judges cannot be trusted not to ignore important evidence is also not just my view. I must draw your attention to one of your own decisions (MW v SSWP (ESA) [2018] UKUT 304 (AAC) where you state in paragraph 12:

‘….the approach of both the Department and the First-tier Tribunal in this case is disappointing….She [the Appellant] really could not have made the point any more clearly and yet for some reason her argument was repeatedly IGNORED. Reading the grounds of appeal is always a good place to start.’

Indeed, and so is not repeatedly ignoring those grounds of appeal.

And in your Decision ‘MH v SSWP and Rotherham MBC (HB) [2017] UKUT 401 (AAC)’ it states in paragraph 12:

‘The Appellant applied to the FTT for permission to appeal to the Upper Tribunal but was refused. Fortunately the Appellant did not give up but persevered…’

Giving up at the first hurdle is not always a good idea, and equally neither is not maximising your chances of success by opting for two POSSIBLE bites of the cherry, instead of just one, especially given past experience.

And now to the present appeal (EA/2021/0064).

The Judge in this case has ignored the evidence, and I am increasingly concerned that the judge or judges of the Upper Tribunal will also do the same – as they did in EA/2019/0032.

Judge Oliver states in paragraph 27 that:

‘However, the appellant is persistent in making serious accusations that the ICO is DELIBERATELY breaking the law. He says it is true, but there is NO evidence of this.’

The Judge is ignoring the following evidence:

The ICO state in their guidance on section 42 that extreme exceptionality is not the correct rule;
Senior iCO case workers know about the FOIA and the associated case law (that extreme exceptionality is not the correct rule);
Senior ICO staff that review decisions know about the FOIA and the associated case law (that is that extreme exceptionality is not the correct rule);
Senior signatories of ICO DN’s know about the FOIA and the associated case law (that is that extreme exceptionality is not the correct rule);
Senior ICO lawyers know about the FOIA and the associated case law (that is that extreme exceptionality is not the correct rule);
Senior lawyers were informed by me on multiple occasions during the progression of my appeal about the FOIA and the associated case law (that is that extreme exceptionality is not the correct rule).

In Judge Oliver’s refusal of my application for permission to appeal she states in paragraph 8:

‘In paragraph 27 of its decision, the Tribunal found that the appellant had not provided evidence to support serious accusations that the ICO is DELIBERATELY breaking the law.’

But I did provide evidence and I provided evidence in my application for permission to appeal, as above. It was all completely ignored. It is simply not credible to argue that the ICO were NOT DELIBERATELY breaking the law.

A further significant example of Judge Oliver ignoring the evidence is the following:

In paragraph 28 of the decision the Judge states:

‘The appellant says in his appeal that he will not make any further requests on the same subject matter, but there is a clear pattern of repeated requests which indicates that he is likely to send further requests on related topics OR ON NEW TOPICS which would be similarly disruptive and lack value or purpose.’

In my reply I stated that the ‘OR ON NEW TOPICS’ was contrary to the law because it clearly had the effect of making the requester and NOT the request vexatious: a request from me on ANY topic whatsoever (‘or on new topics’) would be likely to be vexatious.

In Judge Oliver’s refusal of my application for permission to appeal she completely IGNORES this and states in paragraph 11:

‘Paragraph 28 of the decision found on the basis of the evidence that the appellant was LIKELY to send further requests which would be similarly disruptive and lack value or purpose. The Tribunal did not find that all future requests from the appellant WOULD be vexatious.’

The Judge is completely ignoring that she clearly and unequivocally stated: ‘OR ON NEW TOPICS’. This completely changes the implication: the requester is vexatious, and not just the request.

Judges cannot be allowed to just ignore important evidence or ignore what they have so clearly stated. Ignoring important and relevant evidence is contrary to natural justice.

Time and time and time again judges have IGNORED the evidence that I have submitted, and It makes me deeply distrustful. Am I really being so unreasonable in wanting two POSSIBLE bites of the legal cherry given what I have shown to be so disturbingly true?

That is why I stated in my application for permission to appeal that if the consideration on the papers fails (that is if important evidence is just ignored) then I would have no option (very reluctantly) but to apply for an oral renewal of the application for permission to appeal.

With my grave concerns now fully elucidated I must again repeat that I will NOT take part in an oral hearing at this stage.

J Roberts left an annotation ()

Thanks for posting what you sent to Judge Wikeley. I look forward to reading his response.

Judge Church wrote:

‘In respect of Ground 3, the First-tier Tribunal clearly had a great deal of material before it. It had to consider ALL OF THE RELEVANT MATERIAL AND ASSESS IT AND MAKE FINDINGS BASED ON THE EVIDENCE. It had to consider the submissions made and reach a decision by applying the relevant law to the facts it found on the evidence. Having done so it had to explain its decision to the standard of ‘adequacy’.

Even if Judge Church concluded that the tribunal did do everything required of it to the standard of 'adequacy' would not a failure on his part to explain his findings amount to a lack of adequacy and therefore constitute an error of law?

M Boyce left an annotation ()

Yes it would.

When a judge is confronted with an error of law challenge that they simply cannot even begin to refute they just simply IGNORE it - job done!

J Roberts left an annotation ()

M Boyce,

Was the Commissioner as rigorous in testing her own arguments in your case as she was in testing the arguments of the DWP in IC-82880-S7K3? Was the form and content of the legal advice properly examined?

'78. In consideration of document (b) and the four paragraphs identified by DWP, the Commissioner has made the same finding as for the
aforementioned 13 paragraphs. They do not clearly present legal advice; rather they describe policy.

81. The Commissioner’s view is that legal professional privilege does not apply to the withheld information with the exception of the one
identified paragraph. Therefore the exemption is engaged only in regard to paragraph 20 of document (a).

89. In decision notice IC-47958-R8L1, the Commissioner sets out at paragraph 73 that:

“The Commissioner considers that, while the withheld information could be identified as legal advice, it is not of the form or content that could be likely to undermine the inherent confidentiality between a lawyer and their client if disclosed”.

91. This additional information located includes the specific legal advice that the disputed paragraph of the formal document is based on [14]. Having reviewed this legal advice and the disputed paragraph, the Commissioner is now persuaded that it does reproduce the legal advice received and strengthens the argument in favour of protecting the inherent confidentiality between lawyer and client.

[14] This additional information comprises the email chains that the Commissioner has already determined are exempt from disclosure under section 35(1)(a).'

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

IC-47958-R8L1:

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

M Boyce left an annotation ()

J Roberts, you ask: was the form and content of the legal advice properly examined by the Commissioner in my case?

I don't know, but I very much doubt it.

What I do know is that where two organisations (the PHSO and the ICO) are tasked with investigating each other there is only ever going to be one outcome.

The problem with three successive and very senior judges (all now members of the Upper Tribunal - Judge Moira Macmillan was very recently elevated from the First-tier Tribunal to the lofty echelons of the Upper Tribunal by request of Dominic Raab, MP) ALL ignoring the most important evidence is even more worrying.

This is serious - very serious.

J Roberts left an annotation ()

It is indeed very serious. Judge Wikeley, however, may provide detailed reasons.

Scottish Information Commissioner decision concerning LPP:

Decision Notice 048/2022

'42. While the Ministers have expressed concern that disclosure of legal advice in this case would have the effect of future legal advice being more circumspect or less effective, the Commissioner acknowledges the point made by the Applicant that the Ministers’ own decision to disclose legal advice relating to the Alex Salmond case has already created such an environment, if the risk were there, and a further disclosure of legal advice which is of much greater public interest is unlikely to create any further difficulty. Furthermore, the decision of the Ministers to disclose the legal advice in the Alex Salmond case clearly shows that they recognise that there can be compelling public interest reasons for disclosure of legal advice received.'

https://www.itspublicknowledge.info/site...

M Boyce left an annotation ()

Thanks for this J Roberts.

The Scottish Information Commissioner's decision on LPP makes interesting reading.

Judge Wikeley has responded today with further directions. I will copy exactly what he says and my reply on here very shortly.

M Boyce left an annotation ()

Respondent: The Information Commissioner Tribunal: First-tier Tribunal (Information Rights) Tribunal Case No: EA/2021/0064 Tribunal Venue: in chambers (on the papers) Decision Date: 11 October 2021 Promulgation Date: 13 October 2021

JUDGE’S FURTHER OBSERVATIONS
1. For the background, I refer to my earlier Observations dated 3 March and 14 March 2022.

2. The Upper Tribunal office has now referred me to Mr Boyce’s two e-mails of 9 April and 26 April 2022.

3. In his e-mail of 9 April, Mr Boyce gives three reasons for why he requested a paper consideration instead of an oral hearing. I will take them in reverse order.

4. First, he states his belief that “a paper consideration would have been much quicker and cheaper.” That is true to a degree, but only if permission is granted. If permission is refused, there is considerable “double-handling” involved, both by judges and administrative staff.

5. Second, he states that he feels “more comfortable and more able making my case in writing”. This objection is misconceived – a Judge holding an oral hearing prepares by reading the file including the written application, and bases her or his decision on the grounds of appeal as both written and developed orally at the hearing.

6. Third, Mr Boyce’s main reason is his mistrust of the judiciary – he concludes “Judges cannot be allowed to just ignore important evidence or ignore what they have so clearly stated. Ignoring important and relevant evidence is contrary to natural justice. Time and time and time again judges have IGNORED the evidence that I have submitted, and It makes me deeply distrustful. Am I really being so unreasonable in wanting two POSSIBLE bites of the legal cherry given what I have shown to be so disturbingly true? That is why I stated in my application for permission to appeal that if the consideration on the papers fails (that is if important evidence is just ignored) then I would have no option (very reluctantly) but to apply for an oral renewal of the application for permission to appeal. With my grave concerns now fully elucidated I must again repeat that I will NOT take part in an oral hearing at this stage.” 28 UA-2021-000829-GIA 2

7. Mr Boyce complains at length in this regard about the way that his earlier application in GIA/1208/2010 was handled by UT Judges Wright and Church. I was not involved in those proceedings, which are now closed, and do not propose to engage in a debate about them.

8. I have already given my reasons for directing an oral hearing (see my Observations of 14 March 2022) and I do not need to repeat them. In his e-mail of 26 April 2022, Mr Boyce asks what happens now. What happens now is that I confirm my direction for an oral hearing of this application for permission to appeal.

9. Upper Tribunal AAC oral hearings are normally held at a hearing venue in central London but I appreciate this may not necessarily be convenient for Mr Boyce. However, from time to time oral hearings are held at a venue in Leeds or Bradford, but it may be some time before a hearing slot is available in a suitable West Yorkshire hearing list. It may also be possible, as a further alternative, to arrange a remote hearing by video-link (using the CVP system or equivalent, akin to Zoom) or by telephone (using BTMeetMe). It would certainly be quicker to arrange either an oral hearing in London or a remote hearing than to wait for a hearing slot at a West Yorkshire venue.

DIRECTIONS FOR ORAL HEARING OF APPLICATION FOR PERMISSION TO APPEAL

1. Subject to a Judge’s consideration of any views expressed in the light of Direction 2 below, I direct an oral hearing of this application for permission to appeal to be held in either Leeds/Bradford or London. Time estimate is a maximum of 1 hour.

2. Mr Boyce is directed to notify the Upper Tribunal office within 14 days of the date of issue of these Directions whether he wishes to have the permission hearing held: (i) at a conventional face to face hearing in West Yorkshire (probably Leeds or Bradford); (ii) at a conventional face to face hearing in London; (iii) remotely using a video platform (such as CVP, akin to Zoom); or (iv) remotely by telephone (BTMeetMe). Mr Boyce is directed to give his reasons for his stated preference or order of preference.

3. The Information Commissioner should be notified of the date, time and place of the oral hearing but need not be represented at the hearing. If permission to appeal is granted, the Respondent will be invited to make any submissions at that stage.

4. Judge Church and Judge Wright are excluded from hearing this application.

Nicholas Wikeley Judge of the Upper Tribunal (Approved for issue on) 27 April 2022

My Reply:

I repeat again that I will not take part in an oral hearing at this stage. I have made my reasons very clear.

J Roberts left an annotation ()

M Boyce,

Thanks for posting. I don't often see a judge's 'further observations'. Not the outcome you wanted, but Judge Wikeley deals with each of the three points/arguments you made. He observes:

'4. First, he states his belief that “a paper consideration would have been much quicker and cheaper.” That is true to a degree, but only if permission is granted. If permission is refused, there is considerable “double-handling” involved, both by judges and administrative staff.'

Isn't this an argument that works both ways? If a judge directed a paper hearing for permission but the appellant requested an oral hearing on the grounds that it is quicker and cheaper, couldn't the same argument be made? I don't know what exactly '"double-handling"' involves and how much more time and money Judge Wikeley believes it would require, but this argument seems counter-intuitive.

You have explicitly stated that you, an unrepresented appellant, have no further legal arguments to make. Despite this, Judge Wikeley expects you to develop arguments orally:

'a Judge holding an oral hearing prepares by reading the file including the written application, and bases her or his decision on the grounds of appeal as both written and developed orally at the hearing.'

I look forward to reading his decision.

M Boyce left an annotation ()

Yes I agree that the costs argument is illogical and unsustainable. It also sets a precedent - a very dangerous precedent. He is trying to use the specious cost argument to try and circumvent the law.

Perhaps even more worrying is the fact that the Judge thinks he knows my mind better than I do. This is arrogant and wrong.

I stated that I would feel more comfortable and more able making my case in writing. That is true and is not misconceived. The Judge says no I wouldn't. Oh yes I would. Does the Judge think he is God? Can he read my mind? No he can't and he is not God.

J Roberts left an annotation ()

'I stated that I would feel more comfortable and more able making my case in writing. That is true and is not misconceived.'

A good point.

Definition of misconceived:

'not based on good reasons or correct understanding'

https://www.macmillandictionary.com/dict...

What Judge Wikeley observed:

'5. Second, he states that he feels “more comfortable and more able making my case in writing”. This objection is misconceived – a Judge holding an oral hearing prepares by reading the file including the written application, and bases her or his decision on the grounds of appeal as both written and developed orally at the hearing.'

I don't see how what follows the word 'misconceived' is logically connected to the reasons you gave. Judge Wikeley mentions your reasons for preferring the matter to be dealt with in writing but then jumps to how a judge decides an appeal. Do appellants who feel more comfortable and more able making their case orally have a proper conception? And what of all the applications for permission to appeal dealt with on the papers – misconceived?

M Boyce left an annotation ()

You are quite right: an appellant knows how they feel and it is not for any judge to tell them that their feelings about how they feel are misconceived.

Now the Judge is starting to tread water. Below is what was sent to me by the UTT yesterday. He is constantly moving the goal posts. First he denies a paper consideration on costs grounds, then he says I am misconceived, and now he says that I would be able to make further submissions orally and the new Judge would be able to ask me questions.

I have nothing further to add.

What is the Judge going to ask me? This is not an appeal on the facts, but on matters of putative errors of law. I have stated what I believe are the two errors of law.

My mind has not changed - it has not become 'conceived' - and I will not attend an oral hearing at this stage.

The oral hearing will occur without me. -

'The Judge has asked me to write to you to let you know that the case has been transferred from Judge Wikeley to Judge Jones for the oral hearing.

He encourages you to attend and participate in the oral hearing as it will be your opportunity to put your case orally, expand upon your written representations and answer any questions or queries that he may have.'

M Boyce left an annotation ()

The Judge has now ordered that the oral hearing will take place in early June in London.

I have again informed him that I will not attend.

It is a win win for the venerable Judge. If the Judge decides to strike out the case he wins. If the Judge decides to proceed with the hearing in my absence he will of course decide case dismissed. I will have no right to appeal as I would have had under a paper consideration and the Judge wins.

This is British justice laid bare.

This will be the thin end of the wedge: other judges will see this as a precedent and will order oral hearings in all cases, therefore denying justice to appellants.

J Roberts left an annotation ()

'This is British justice laid bare.'

Thanks to your posts I have seen a facet of tribunal procedure I knew little about. You have clearly shown the significance of a judge having the power to direct an oral hearing FOR PERMISSION to appeal. Few people outside the legal profession will understand the significance. I don't think that the oral hearing directed allows you, an unrepresented appellant who has stated clearly that you would prefer to deal with the application for permission to appeal in writing, to participate effectively in the tribunal process.

M Boyce left an annotation ()

You are quite right J Roberts.

The central tenet of the tribunals system is to be fair and just. There is nothing fair and just about ignoring an appellant's wishes and imposing an oral hearing on spurious costs grounds.

It is also interesting that Judge Wikeley has tied the hands of Judge Rupert Jones who will hold the oral hearing (the one where nobody is going to be there!).

J Roberts left an annotation ()

'It is also interesting that Judge Wikeley has tied the hands of Judge Rupert Jones who will hold the oral hearing (the one where nobody is going to be there!).'

Yes, Judge Jones does not get to decide how best to proceed. Without representations from you, I suspect you may be right about the outcome. You have clearly stated, however, that you have no representations to make orally on your application for permission.

Something about making representations:

'33. Each party and, with the permission of the Upper Tribunal, any other person, may—

(a) submit evidence, except at the hearing of an application for permission;

(b) make representations at any hearing which they are entitled to attend; and

(c) make written representations in relation to a decision to be made without a hearing.'

https://www.legislation.gov.uk/uksi/2008...

M Boyce left an annotation ()

The whole thing is a complete stitch-up.

The Judge will hold the oral hearing and dismiss the appeal.

I won't be able to appeal because it is an oral hearing and not a consideration on the papers.

Judiciary wins and justice loses.

At least I've exposed what really goes on with British 'justice'.

M Boyce left an annotation ()

I would be astonished if anyone could find a single published example where the Upper Tribunal had ordered an oral hearing instead of a paper consideration on costs grounds alone - as in my case. It would be too damaging to the Tribunal to publish such an action - better to keep it quiet and not publish such unfair behaviour.

It is ALWAYS the case that an appellant may wish to renew a failed paper consideration at an oral hearing. The costs argument therefore applies in EVERY single case. Should all appellants therefore be forced into an oral hearing to POSSIBLY save a few quid, no matter what their concerns may be?

J Roberts left an annotation ()

'I would be astonished if anyone could find a single published example where the Upper Tribunal had ordered an oral hearing instead of a paper consideration on costs grounds alone - as in my case.'

My attempt to get information on oral hearings for permission got nowhere:

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

They may exist but are just not published. If they exist, and if they were published, unrepresented appellants like you would be able to use them to assist in deciding whether pursuing an appeal was worthwhile or not. If the MOJ has information on the number of oral hearings directed on cost grounds, and information relating to how much money they save, this would be useful information to have. As things stand, I am not persuaded by Judge Wikeley's costs argument.

J Roberts left an annotation ()

I meant to write 'oral hearings FOR PERMISSION'.

M Boyce left an annotation ()

Thanks for your support J Roberts. Obviously, I too am not persuaded by Judge Wikeley's very flimsy costs argument.

Below is a very timely decision by Judge Wikeley

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

Paragraph 8 is most illuminating.

'....Given the QUALITY of the written submissions, for which I am grateful to all concerned, it is fair and just to determine this appeal 'on the papers' and so without an oral hearing.'

So my submissions were clearly not good enough quality?

Utter nonsense. Why didn't he say that my submissions were of a poor quality and therefore an oral hearing was necessary?

What about the costs argument? Why does that only apply in my case and my case alone?

All this only adds to the picture of Judge Wikeley acting unfairly and unjustly.

J Roberts left an annotation ()

Paragraph 8 refers to the oral hearing proper and paragraph 7 refers to the application for permission to appeal.

Where a judge directs an oral hearing for permission to appeal, do they take into account any written representations from the applicant (see c below)?

'33. Each party and, with the permission of the Upper Tribunal, any other person, may—

(a) submit evidence, except at the hearing of an application for permission;

(b) make representations at any hearing which they are entitled to attend; and

(c) make written representations in relation to a decision to be made without a hearing.'

https://www.legislation.gov.uk/uksi/2008...

M Boyce left an annotation ()

Yes they do take into account (or at least are supposed to) written representations from the applicant.

Having had an oral hearing with an Upper Tribunal Judge - Judge Church - I know exactly what happens.

The only question the Judge asked me was was there any questions I wanted to ask him.

The only question of significance that I asked was why did Judge Wright completely ignore the most important of my grounds of appeal in UTT appeal of EA/2019/0032.

The Judge just stated that he hadn't done this. He obviously had, but I thought rather than push the issue at the oral hearing I would let Judge Church look at the evidence again and realise that I was right.

Judge Church then also went on to ignore what I had so emphatically stated.

That is what happens at oral hearings.

I don't trust any Judge any more. The bond of trust is well and truly broken.

I must continue, however, to see if it is just possible to find a judge who acts with fairness and integrity and will act justly.

J Roberts left an annotation ()

'The Judge just stated that he hadn't done this.'

Perhaps Judge Church based his answer on something written by Judge Wright that you were not made aware of. If evidence to support Judge Church's assertion was contained in the information communicated to you, I'm surprised that he didn't point it out.

M Boyce left an annotation ()

Judge church assured me that he had had no direct communication from Judge Wright.

The fact remains that Judge Wright completely ignored what I had stated was THE most important ground of my appeal.

It has now occurred to me that Judge Wikeley's costs argument is even more perverse than it first appears.
He has refused my request for a paper consideration because he considers that an oral hearing is 'a better use of scarce judicial resources'. This despite my stating emphatically that I would only request an oral renewal of a failed paper consideration if and only if either or both of my grounds of appeal were completely ignored. The Judge ignored this - as they all do.

So we now have an oral hearing in London that no party is going to attend. Is this a good use of scarce judicial resources?

J Roberts left an annotation ()

'It has now occurred to me that Judge Wikeley's costs argument is even more perverse than it first appears.'

The more I think about his argument the weaker it seems.

Next month there will be an oral hearing for permission to appeal that you have said you will not be attending.

M Boyce left an annotation ()

Yes

And then there is paragraph 7 in the decision below.

In my case Judge Wikeley has ordered Judge Jones to order me to attend an oral hearing in London, which is totally unnecessary, totally pointless, more expensive than a paper consideration, and no one is going to be there.

I will be faced with a costs order for not jumping to command. I will never jump to command.

It is also worth pointing out that Judge Wikeley excluded Judge Wright and Judge Church from holding the oral hearing. Why? If he considers that they have done nothing wrong then why exclude them?

This is going to get very messy indeed.

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

J Roberts left an annotation ()

An excellent find relating to a refused application for judicial review, M Boyce.

Is this a fair summary of the paragraph, and are you currently at 'stage 1'?

1. Oral hearing directed by Judge Levinson regarding application for permission.

2. Judge Levinson revoked his direction and refused the application on the papers.

3. Applicant's request to '"appeal”' refused – request treated as a request for reconsideration at an oral hearing'.

4. Applicant said her poor mental health meant she could not attend. Judge Wright then held a 'purely formal hearing with no parties present'.

5. Following a response from CICA and written submissions from the Applicant, Judge Wright directed a further oral hearing which the Applicant did not attend; the Applicant did make further written submissions.

6. Judge Wright considered it in the interests of Justice to proceed and heard only from the Respondent's representative.

M Boyce left an annotation ()

Yes.

It was Judge Ward in this appeal. I couldn't quite see Judge Wright being quite so accommodating.

I sent an email to the UTT last week outlining my continuing concerns to Judge Jones. He has not replied. Perhaps he is also going to just ignore everything I say? He might as well join this 'illustrious' judicial club.

I suspect he thinks I will do as I am ordered and attend the oral hearing. Well he's going to be 'disappointed', because I'm not.

J Roberts left an annotation ()

Yes, Judge Ward.

M Boyce left an annotation ()

The below is taken from the UTT case of 'Secretary of State for Work and Pensions v LH (ESA): [2017] UUT 475 (AAC)'.

Supreme Court rulings are binding on all lower courts, including tribunals, in terms of general points of law.

I expect the Judge in my case to simply state that I do not know what I am talking about because my mind is misconceived. Except it's not.

'9. The claimant has asked for an oral hearing. I refuse that request. The
Upper Tribunal has a discretion whether or not to hold a hearing: rule 34(1) of
the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698). The test I
have to apply is whether ‘fairness requires such a hearing in the light of the facts
of the case and the importance of what is at stake’: R (Osborn) v Parole Board
SECRETARY OF STATE FOR WORK AND PENSIONS V LH [2017] UKUT 475 (AAC)
UPPER TRIBUNAL CASE NO: CE/1982/2017
3
[2014] AC 1115 at [2(i)]. I am required to have regard to the parties’ views: rule
34(2). I do not consider that a hearing would assist me or benefit the claimant at
this stage

M Boyce left an annotation ()

The below is what I have sent to the Upper Tribunal today, alongside the official form which asks whether I will or will not be attending the hearing.

Reasons why I will NOT be attending the imposed oral hearing:

(1) It is unnecessary. I have made my arguments clearly, cogently and concisely. I have nothing further to add and nothing further to clarify.
(2) An imposed oral hearing has dragged this appeal on for six months, when a paper consideration could have occurred in a few weeks at most. Justice delayed is justice denied.
(3) I stated that I would be more comfortable and more able making my case in writing. The Judge has stated that I do not know my own mind – that I am misconceived. I am not. I know my mind better than he does. I do not like, and am not particularly good at giving oral presentations. That is not a misconception.
(4) I stated that I would only request an oral renewal of a failed paper consideration if, AND ONLY IF, my grounds of appeal were completely ignored, as other grounds have been in previous considerations/hearings. The Judge has completely ignored/dismissed out of hand my serious and proven concerns.
(5) The Judge has ordered an oral hearing on costs grounds. To my knowledge no applicant has ever had their request for a paper consideration refused on costs grounds before. This is discriminatory. All applicants for a paper consideration could have their request refused on costs grounds – because they MAY request an oral renewal if the paper consideration fails. But this has never happened, except in my case, and my case alone.
(6) The Judge has ordered an oral hearing in order to deny me any attempt to challenge the complete ignoring of my grounds of appeal, should that happen.
(7) I have very serious concerns, which are fully evidenced, and these have been completely ignored/dismissed out of hand.

What is happening here is not justice; it is the complete opposite of that.

The oral hearing is a further waste of scarce judicial resources. I am also very concerned that I will be landed with a costs order for something that I did not want and that has been unfairly and unjustly imposed on me.

I consider that the Judge is not only contravening the Upper Tribunal Rules in terms of fairness and justness of procedure, but he is also clearly in breach of The Supreme Court judgement of R (Osborne)v Parole Board [2014] AC 1115 at [2(i)].
I believe that Supreme Court rulings do apply and are legally binding on the Upper Tribunal in terms of general points of law, as the below Upper Tribunal decision makes clear:

Secretary of State for Work and Pensions v LH (ESA): [2017] UKUT 475 (AAC).

‘9. The claimant has asked for an oral hearing. I refuse that request. The Upper Tribunal has a discretion whether or not to hold a hearing: rule 34(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698). The test I have to apply is whether ‘fairness requires such a hearing in the light of the facts of the case and the importance of what is at stake’: R (Osborn) v Parole Board SECRETARY OF STATE FOR WORK AND PENSIONS V LH [2017] UKUT 475 (AAC) UPPER TRIBUNAL CASE NO: CE/1982/2017 3 [2014] AC 1115 at [2(i)]. I am required to have regard to the parties’ views: rule 34(2). I do not consider that a hearing would assist me or benefit the claimant at this stage…..’

The Judge in my case has ordered an oral hearing not because it is fair, but because it might POSSIBLY save a few quid. Point viii of the Supreme Court Ruling warns against such an approach:

‘The board [The Parole Board, but equally applicable to the Upper Tribunal] should guard against any temptation to refuse oral hearings [and presumably paper considerations] as a means of saving time, trouble and expense.’

And equally they should guard against the same temptation in regard to paper considerations and putative extra time, trouble and expense.

J Roberts left an annotation ()

'2. It may be helpful to summarise at the outset the conclusions which I have reached.
...
viii) The board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense.'

I'm not sure that the context allows for a read across to the more serene world of information rights. The appellant was a serious criminal and his liberty was at stake:

'18. The appellant Osborn was convicted in 2006 of putting people in fear of violence by harassment, and possession of an imitation firearm, during an incident when he was said to have brandished the imitation firearm at the home of his estranged wife.'

Osborn (Appellant) v The Parole Board (Respondent)

https://www.supremecourt.uk/cases/docs/u...

Notwithstanding my reservations, I remain unconvinced of Judge Wikeley's costs argument to justify an oral hearing for permission for two reasons:

1. I have seen nothing to demonstrate that an oral hearing for permission in your case would save money; and

2. I don't see how an oral hearing for permission is fair given your position as an unrepresented appellant and the clear reasons you have provided in opposing it.

M Boyce left an annotation ()

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

Thanks J Roberts.

I'm in general agreement with you.

One point I disagree with is about whether there can be a 'read across' from the Parole Board decision cited earlier to my case. The above UTT case involved an Employment and Support Allowance (ESA) case. This is not necessarily as 'serious' as Parole Board cases (depending on your point of view), but the Judge nonetheless has imported the Supreme Court principles across to the UTT - whether or not it is fair or not to hold, or indeed impose an oral hearing.

A fair legal process should not be reserved for just the most 'serious' cases. Surely everyone should have access to a fair legal process? I know this doesn't happen in the UK, but of course it should.

J Roberts left an annotation ()

"The test I have to apply is whether ‘fairness requires such a hearing in the light of the facts of the case and the importance of what is at stake’".

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

With benefit matters, I have sometimes read about the importance of tribunals giving appellants the benefit of the doubt. A decision to strip someone of their benefit might be considered by the UT to be of the utmost importance. Maybe not. By citing the case in your email we will hopefully find out.

M Boyce left an annotation ()

I think that you will agree that the test is: is a hearing necessary in terms of FAIRNESS of procedure and outcome?

The test is not: should a hearing be imposed to POSSIBLY save a few quid? I think this should be a secondary argument. Oral hearings are often refused BOTH out of fairness and cost. My case is the ONLY example of a case where a paper consideration has been imposed for cost reasons only.

Is justice primarily about fairness or is it primarily about trying to save a bit of money? It must be the former.

You are bang on the money with the benefit cases. Tribunals undoubtedly allow far more of these than they do information rights cases. The reasons for this may be twofold. Firstly, taking money from people can literally involve life and death decisions; and secondly, legal aid is often available for benefit cases, but is not for information rights cases.

Authorities, the ICO and judges simply do not see information rights as important, and equally they do not want the great unwashed to have access to information that might be used to hold the Establishment (of which they are a part) to account. Knowledge is power, and they want to keep that for themselves.

We will see what Judge Jones has to say about the Supreme Court case. Or maybe he will just do what all the other judges have done, and just completely ignore what I said.

M Boyce left an annotation ()

In the second paragraph that should read: where an ORAL hearing has been imposed for costs reasons.

M Boyce left an annotation ()

With reference to the Supreme Court case cited above, which being a superior court is binding on the Upper Tribunal, the following observations are important:

English domestic law, as both common law and statute, place procedural fairness at the centre of the notion of justice.

Procedural fairness is necessary to avoid both actual injustice and the sense of injustice - justice has to be seen to be done.

Procedural fairness requires that judges should actually listen to what an appellant has to say, rather than just ignore it or dismiss it out of hand.

It has now been more than three weeks since I informed Judge Jones, with detailed reasons, that I would NOT be attending the imposed oral hearing. That hearing is due shortly and the Judge appears also to have ignored everything I have said.

Where is the procedural fairness in all this?

This is how British 'justice' really works.

M Boyce left an annotation ()

In Judge Wikeley's Direction of 27 April 2022 he stated:

'Judge Church and Judge Wright are excluded from hearing this application.'

Today I have emailed the UT to ask Judge Wikeley to please explain why he excluded these Judges.

Judge Wikeley had previously stated that he had nothing to say about my concerns regarding these two Judges. So why exclude them?

I suspect he will not respond, but if he does perhaps he will say that he excluded them simply because they were involved in a previous case of mine. Surely this would not be a good enough reason to exclude them? If it was, then what about Judge Jones, who is currently undertaking the hearing about this case (which I will not attend), and who also heard a case of mine fairly recently?

My concerns about the fairness of the judiciary are multiplying by the day.

J Roberts left an annotation ()

'Today I have emailed the UT to ask Judge Wikeley to please explain why he excluded these Judges.'

An argument could be made that his decision to exclude them was in the interest of fairness: a fresh mind unconnected with what has already gone on.

M Boyce left an annotation ()

Yes that argument could be made, and although it may make common sense, it does not stand up to legal scrutiny.

The Court of Appeal case of 'Drury v BBC and another' [2007] found that:

'the mere fact that a judge has made a finding against a party on a previous occasion does not found a later objection to the judge sitting in another matter.'

So there must be some compelling reason why Judge Wikeley has excluded Judges Church and Wright.

Judge Wikeley dismissed my concerns about Judges Church and Wright and then excludes them. That demands explanation.

M Boyce left an annotation ()

By excluding Judges Church and Wright Judge Wikeley is TACITLY admitting that my concerns are valid. If my concerns were not he would not exclude them. He knows I have concerns about ALL judges and if he was fair-minded he would not dismiss my concerns and just push ahead with a deluded and allegedly cost-saving measure. It is utter madness.

I asked for a paper consideration partly because if the judge ignores my grounds of appeal, as happened with Judge Wright and Church, then I would have one last chance with an oral renewal. Judge Wikeley knows my concerns, but he has nonetheless ordered an oral hearing to possibly save a few quid.

By any standard this is illegal and it is immoral.

I am already looking into a judicial review challenge of this illegal behaviour.

J Roberts left an annotation ()

'Drury' concerns recusal. Confusingly Mr Drury is referred to as 'the appellant Mr Stephen Drury' (para. 1) but is identified as the 'Respondent' party at the beginning:

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

Mr Drury did not want Wilson LJ dealing with his case because of how he perceived Wilson LJ's treatment of him in another case in which he acted as a Mackenzie friend.

Are you not seeking two judges you have been critical of to be included in the pool of judges eligible to consider your case and is not this the opposite of what Mr Drury wanted with regard to one judge?

M Boyce left an annotation ()

You are quite right that the 'Drury' case refers to judge recusal rather than judge exclusion, but they both have exactly the same practical effect: the judge is to take no part, or no further part, in the case.

The 'Drury' case, and other similar ones, basically make the point that a judge should not be excluded/recused from a case MERELY because that same judge was involved in another unrelated case with the same appellant. There has to be a good reason why a judge should be recused/excluded.

I never asked for Judges Church or Wright to be excluded. My concerns included that ALL judges cannot be absolutely trusted not to ignore crucial grounds of appeal - as Judges Church and Wright did.

I stated that I would only request an oral renewal of a paper consideration, if and only if, my grounds were ignored, as previously.

Judge Wikeley has explicitly ignored my concerns. But he may have tacitly acknowledged my concerns by excluding Judges Church and Wright. That is still missing the point: I have serious wider concerns and these should not just be ignored by just nudging these two judges under the bus.

In the final analysis a judge does have discretion on whether to hold an oral hearing or not, BUT this discretion MUST, as a matter of law, be founded on fairness and NOT on possibly trying to save a bit of money.

J Roberts left an annotation ()

'In the final analysis a judge does have discretion on whether to hold an oral hearing or not, BUT this discretion MUST, as a matter of law, be founded on fairness and NOT on possibly trying to save a bit of money. '

I agree that the saving money argument in your case appears very weak.

On the separate issue of Judge Wikeley explicitly excluding two particular judges from hearing your application for permission to appeal, I think you would have had more reason to complain had he explicitly directed that one of them must hear your application. It's not clear to me why you object to them being excluded.

M Boyce left an annotation ()

I don't object to the two judges being excluded. I think that was the right thing to do. What I do object to is that Judge Wikeley has not explained WHY he excluded Judges Church and Wright.

Judge Wikeley stated that he would not engage with my concerns about what had happened with these two judges in a previous case of mine. Then why exclude them? Why? Excluding judges is a serious matter and it should not be done without explanation or reason.

M Boyce left an annotation ()

The following from Judge Jones sent to me yesterday.

I am sending this response on behalf of UT Judge Jones:

The Judge was allocated this case by Judge Wikeley who is the lead judge with responsibility for Information Rights appeals. There is a small pool of available judges who are members of this judicial group. The Judge is aware of deciding a previous unconnected case relating to Mr Boyce. He determined a previous application for permission to appeal by Mr Boyce on the papers on 7 September 2020. It was in relation to a different decision of the First-tier Tribunal.

In light of Mr Boyce’s email, the Judge has considered whether to recuse himself from hearing and deciding his application on the grounds of actual or apparent bias.

Paragraph 25 of the Court of Appeal’s judgment in Locabail (UK) Ltd v Bayfield Properties Ltd & Anor [1999] EWCA Civ 3004 is one of the key and binding authorities on the issue (which is set out below).
UTJ Wikeley was not laying down any rule of general principle that the same judge may not determine one of Mr Boyce’s applications having previously refused permission in another application. The passage of time between deciding cases is relevant and the Judge had to refresh his memory and search his records before identifying the previous case he determined because he had no active memory of it:

25.It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge's social or educational or service or employment background or history, nor that of any member of the judge's family; or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extra-curricular utterances (whether in text books, lectures, speeches, articles, interviews, reports or responses to consultation papers); or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; or membership of the same Inn, circuit, local Law Society or chambers (KFTCIC v. Icori Estero SpA (Court of Appeal of Paris, 28 June 1991, International Arbitration Report. Vol. 6 #8 8/91)). By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakauta v. Kelly (1989) 167 CLR 568); or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.

In this case, the Judge is satisfied that there was nothing within the terms of his previous refusal of permission that would disqualify him from hearing this fresh unrelated application or require him to recuse himself on the grounds of actual or apparent bias. In the previous refusal, the Judge expressed himself in neutral terms and made no adverse findings regarding Mr Boyce’s credibility although he upheld HHJ Shanks’ ruling on Mr Boyce’s vexatiousness in another context relating to a different request as not being made in error of law. He is satisfied that no reasonable person would consider that the Judge could not fairly decide the current application on the basis of the alleged errors of law relied upon. Determining the application will not involve hearing evidence and making findings of fact in any event.

The Judge has already made clear that UTJ Wikeley has (and was entitled to) direct an oral hearing of the application for permission to appeal under the Tribunal Procedure (Upper Tribunal) Rules 2008.

There is no presumption under the UT Rules or any practice direction that an application for permission should be decided on the papers before an oral hearing is directed; ie. there is no presumption under the Rules or practice direction that the Applicant should have two determinations, one on paper and, if refused, a further reconsideration at an oral hearing. The UT has a discretion to direct an oral hearing immediately which UTJ Wikeley properly exercised for the reasons he gave.

This is in contrast to the practice direction for judicial review applications in the Administrative Court of the High Court which does provide that the general position is that an application should be decided on the papers first before being reconsidered at an oral hearing if the application is refused and renewed.

Mr Boyce is encouraged to attend the hearing next week to make his application orally for the reasons that the Judge has already explained. If Mr Boyce wishes to participate in the hearing remotely by telephone or CVP internet enabled video this can still be arranged. Mr Boyce’s previous refusals to participate in an oral hearing will not be held against him.

If Mr Boyce does not attend the hearing, having been properly notified and with no good reason for his absence – ie. that he does not attend out of choice, as is his right – then the Judge will have the discretion to proceed with the hearing in his absence. The Judge will have to decide whether it is in the interests of justice to proceed to determine the application on its merits thereafter based only on the written arguments that have been presented.

Without prejudice to the ultimate decision, there is not likely to be any costs award made against the Applicant whether he attends the hearing or not – the Information Commissioner has not indicated that it will attend and the only grounds for any party to obtain costs against another is on the grounds of unreasonable behaviour. The Judge is currently of the view that the Applicant has not behaved unreasonably in conducting proceedings.

M Boyce left an annotation ()

And my response to the previous post sent to the Judge today.

Could you please ensure that Judge Jones receives this response to his recent communication.

I fully accept your reasons for not recusing yourself from this hearing (not that I asked for that to happen).

I now accept the explanation that Judge’s Church and Wright were excluded simply because they heard a very recent case of mine.

I now turn to other issues that I cannot accept.

I must quote one line from your recent correspondence that has got me very concerned:

‘….In the previous refusal the Judge expressed himself in neutral terms and made no adverse findings regarding Mr Boyce’s credibility although he upheld HHJ Shanks’ ruling on MR BOYCE’S VEXATIOUSNESS….’

Under the Freedom of Information Act, and later in case law, it is the request, and not the requester that can be considered vexatious. This is of central importance, and it is of central importance to the up-and-coming hearing. It would now appear that you regard requester's as vexatious and not just a request:’ Mr Boyce’s vexatiousness’. Judge Oliver also regarded me as vexatious and now you state that you regarded me as vexatious in a previous case. This does not bode well for the present case which raises that very question: can a requester be legally regarded as vexatious? Put in Judge Oliver’s terms: that any request I make on ANY subject whatsoever will be likely to be vexatious.

You state that Judge Wikeley is entitled to order an oral hearing. But you have not addressed my concerns that he should only do so if it is fair and just to do so, and not just as a measure of possibly saving some money. My concerns have again been ignored. This does not bode well. I quoted case law, which you appear to have ignored. The present hearing is also about the ignoring of evidence. This does not bode well. The case law that I quoted was the following:

‘Secretary of State for Work and Pensions v LH (ESA): [2017] UKUT 475 (AAC).’

In paragraph 9 it states:

‘The claimant has asked me for an oral hearing. I refuse that request. The Upper Tribunal has discretion whether or not to hold a hearing: rule 34(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008. The test I have to apply is whether FAIRNESS requires such a hearing in the light of the facts of the case and the importance of what is at stake: R (Osborn) v Parole Board [2014] AC 1115 at [2(i)]. I am required to have regard to the parties’ views: rule 34(2)’.

You have completely ignored this binding case law. It is fairness that matters MOST and not trying to save some money, even though that is not unimportant.

It would appear from yours and Judge Wikeley’s analysis that a judge can order an oral hearing no matter how unfair this may be to an applicant/appellant: might is right, and that is that, and fairness doesn’t come into it. Economic expediency must always trump fairness and justice.

This issue is of such vital importance to me and more importantly more widely that I will have no alternative but to request a judicial review on this matter. This matter now needs a definitive legal ruing to see whether fairness or economic expediency matters most.

You encourage me to attend the imposed oral hearing for the reasons given by Judge Wikeley (to present my case orally), but then you clearly recognise that this would be of little value. In your communication you state:

‘…He [you] is satisfied that no reasonable person would consider that the Judge could not fairly decide the current application on the basis of the alleged errors of law relied upon. Determining the application will NOT involve hearing evidence and makings findings of fact in any event.’

The imminent hearing is also only concerned with alleged errors of law. I don’t believe I have anything further to add on these legal issues.

To my understanding oral hearings are usually held to explore complex issues of FACT and not relatively straightforward issues of law. I am also at a loss to understand why YOU think an oral is NECESSARY. You state what Judge Wikeley thinks, but he’s not the one conducting the hearing. If a hearing was necessary then you should surely have stated why. Simply tacitly agreeing that an oral hearing is going to happen to save some money is not in my mind fair.

You state:

‘If Mr Boyce does not attend the hearing, having been properly notified and with no good reason for his absence – i.e. that he does not attend out of choice….’

So, you consider that not attending the imposed oral hearing because I have serious concerns about fairness, which have not been addressed, and that I do not want to attend because I feel uncomfortable doing so, and that I don’t believe it is actually necessary are not a good reasons for not attending. This is just to entirely dismiss my concerns. They are good reasons for not attending.

I note that you state that you believe that I have not behaved unreasonably in conducting proceedings. I have only ever wanted to behave reasonably and to try to effect a fair and just consideration of my application. That is all I ever wanted and that is all I want now.

It saddens me greatly to say that my concerns have not been assuaged, but have actually been significantly aggravated. You appear to regard me as vexatious and you have not addressed my concerns that proceedings should be directed by fairness and justice and not just directed by a possible economic expediency.

My conscience and my integrity simply will not allow me to take part in an oral hearing that I do not want, do not think is necessary, and that I believe has been imposed for purely financial reasons and not for reasons of fairness and justice.

J Roberts left an annotation ()

M Boyce,

Thanks for posting.

The response from Judge Jones is admirably clear on procedure. I note the significance of his penultimate paragraph. You have argued that judges have so far ignored your main argument (something, if I remember correctly, Judge Wikeley has told you is not the case). If Judge Jones considers that it is not in the 'interests of justice to proceed to determine the application on its merits' - then your main argument may still not be considered to your satisfaction. Would he say why he considered your argument insufficient in such circumstances?

'Mr Boyce’s vexatiousness in another context relating to a different request...'

I agree that this statement seems to be playing the man rather than the ball. Section 14 FOIA, as you say, deals with requests that are vexatious. There is no vexatiousness in your DNA!

'The UT has a discretion to direct an oral hearing immediately which UTJ Wikeley properly exercised for the reasons he gave.'

Judge Jones uses 'reasons' - plural. Did Judge Wikeley give any reason in addition to the questionable costs argument? Judge Jones is backing him to the hilt.

M Boyce left an annotation ()

The Judge's are just working together to ignore everything I say.

Judge Wikeley just later stated that I could ask questions and answer questions at the oral hearing. I repeatedly told him I had nothing more to say. He just ignored me and said my mind was misconceived. Nice try.

Successive judges of the Upper Tribunal have now accused me of being vexatious when they know full well that this is not legal under the FOIA 2000. I have repeatedly told them this is not legal. They just ignore everything I say.

The best way for a judge to defeat justice is to ignore the evidence.

This thread is a record of what really goes on in our 'justice' system.

M Boyce left an annotation ()

Does anybody else reading this thread think that judges should prioritise possibly trying to save a small amount of money over fairness and justice?

I would be very grateful for any feedback on this.

Perhaps, like Judge Wikeley and Judge Jones, some, or even many, people do think that saving money is more important than delivering justice.

Please do let me know.

M Boyce left an annotation ()

The below sent to Judge Jones today. The hearing, with nobody there, will take place in just over 24 hours. The decision is a foregone conclusion.

LACK OF PROCEDURAL FAIRNESS -

In paragraph 11 of case GIA/1021/2020 (Judge Jones), 07 September 2020, it states the following:

‘The Applicant did not request an oral hearing of his application to appeal. There is no RIGHT [your emphasis] to an initial oral hearing before the Upper Tribunal of an application for permission to appeal, ONLY IF IT IS REFUSED ON THE PAPERS [my emphasis]. In all the circumstances, where the Applicant does not seek a hearing but will have a RIGHT [my emphasis] to apply for an oral hearing of any renewal of his application….’

So according to yourself in the above case an Applicant DOES have a right to request an oral renewal of a refused paper consideration. But, in the present case you agree with Judge Wikeley that a request for an oral renewal is a qualified right - such a request for an oral renewal may be refused if the Judge decides to strike out the case.

Judge Wikeley states in his ‘Judge’s Observations’, dated 14 March 2022, the following:

‘Mr Boyce is labouring under a misapprehension. An applicant’s answer to the question in Box F on Form UT11 about whether s/he wishes to have an oral hearing of the application is not determinative. The Judge has discretion on whether to direct an oral hearing, taking into account (but not being in any way bound by) the parties’ views (see rule 34). There is also NO RIGHT [my emphasis] to ‘two bites of the cherry’ [an oral renewal following a refused paper consideration]. If refused on the papers, an applicant may request an oral reconsideration but an application may always be struck out without a hearing under rule 8.’

I do not believe there has ever been a single case where an application for an oral renewal has been struck out. If I am wrong then please correct me on this. Even if there has been, this would not be good enough reason to deny an applicant their preferred choice of a paper consideration.

On Form UT 11 I stated exactly the following:

‘If this direct appeal on the papers to the Upper Tribunal upholds the First-tier Tribunal decision I will have no option but to REQUEST [emphasis was not applied on the UT11 Form] an oral renewal of the appeal…’

I was not labouring under any misapprehension. Judge Wikeley erroneously accuses me of regarding an oral renewal as an absolute right. It was stated I would simply REQUEST an oral renewal.

So, Judge Wikeley and yourself have refused me a paper consideration because an oral hearing may save some money and because any oral renewal application MAY be struck out.

FAIRNESS -

In case GIA/1021/2020 you also state:

‘…..I cannot see what an oral hearing would usefully add to these proceedings at this stage. I have all the relevant material before me and I do not consider that any hearing of the application is needed in order for it to be properly determined. It is in the interests of justice, just and fair, to proceed without a hearing.’

Why wasn’t an oral hearing imposed here to try and save some money?

I have read well over a thousand Upper Tribunal decisions and all of them - without a single exception – have only directed an oral hearing at the outset where it was deemed NECESSARY to do so in terms of fairness and justice – that is that an oral hearing was necessary because a discussion/expansion/further exploration/clarification of the issues was needed. Not one of them has ever stated that an oral hearing at the outset was NECESSARY just to try and save some money and/or because an oral renewal may be struck out.

What relevant material do you not have before you in this application? Neither Judge Wikeley nor yourself have stated that the present case cannot be fairly decided on the papers because of a lack of relevant material or because there is a need for oral explanation, more clarity or discussion. If more material or explanation or more clarity or discussion was needed in the interests of justice then why wasn’t it stated? This is absolutely crucial to any notion of justice. Are you proceeding without all the relevant material that you need to make a fair and just decision?

I must now state on record that I have no faith whatsoever in the procedural fairness of this imposed oral hearing – imposed to try to save money and not to elicit further evidence in the pursuit of justice. I regard this as a sham exercise in justice. If procedure is not fair then a fair decision simply cannot occur.

I ask you, please, if you have any belief in justice then do not proceed with this unfair process which will inevitably infect any decision that is made.

There can be no fair decision without a fair process.

J Roberts left an annotation ()

'The decision is a foregone conclusion.'

Strike out?

You'll find out soon enough.

M Boyce left an annotation ()

It is very unlikely that they will attempt to strike out the application. There are simply no grounds to do so. In any event, they will want this case to now slip quietly under the radar without any more fuss or possible avenue for appeal - and the latter was always their explicit plan. They will hear the case in my absence and ignore everything I have said - as usual. They will commend the First-tier Tribunal judge for her sterling work. Justice will not have been done, but I will have been.

M Boyce left an annotation ()

https://informationrights.decisions.trib...

The above case on section 14 FOIA (vexatious) makes it very clear that the cut-off point for looking at evidence is the point that an authority responds to the request under dispute - not matters that occurred afterwards. This is echoed in the ICO's published guidance on section 14.

But this is not what happened in my case above. Here the ICO and then the First-tier Tribunal took into regard requests on an entirely different subject matter that were made many months after the authority (the ICO itself) responded to the request.

As usual, this is the Establishment saying do as we say and not as we do.

The upper Tribunal will of course completely ignore this. Their best form of defence is always to just ignore what they don't like and don't want to hear.

J Roberts left an annotation ()

The Guidance supports your position:

'The cut off point for evidence that a request is vexatious

You may take into account any evidence you have about the events and correspondence which proceeded or led-up to the request being made.

You have a set time limit (normally 20 working days) in which you must respond to a request. As long as you keep to this time limit, then you may also take into account anything that happens within the period in which you are dealing with the request (eg if the requester sends in further requests).

However, you CANNOT take into account anything that happens after this cut-off point. This means that if you breach FOIA by taking longer than 20 working days to deal with a request, or if you make a late claim of section 14(1) after a complaint has been made to the ICO, then you need to disregard anything that happened after the time limit for responding had expired.' (emphasis added)

https://ico.org.uk/for-organisations/gui...

M Boyce left an annotation ()

Yes the ICO Guidance and the Upper Tribunal case law of 'Dransfield' fully support the cut-off point.

But, I have proven throughout this thread that judges, when it suits their agenda, just simply ignore the law. They are very good at quoting the law to support their case, but if an appellant does the same, they just ignore the law and ignore the appellant. They would make very good prime ministers.

I always thought the Establishment couldn't be trusted, but now I know for certain that it cannot be trusted.

I wish I was wrong - but I'm not, and the evidence is there for all to see if anyone doubts this.

J Roberts left an annotation ()

Have you seen this?

TINTAGEL PARISH COUNCIL v IC - EA/2021/0036

'91. The tribunal conducts a full merits review and therefore can take account of any evidence and submissions before it that it considers relevant, whether or not considered by the Commissioner. The tribunal can make new findings of fact. Complaints about the manner in which the Commissioner conducted her investigation do not fall within our remit.'

https://www.bailii.org/uk/cases/UKFTT/GR...

M Boyce left an annotation ()

Yes I have seen that decision. It makes clear that the First-tier Tribunal is supposed to conduct a full merits review - effectively looking at ALL the evidence available to it - that is evidence on the facts and evidence on the law.

My present appeal to the Upper Tribunal is of course an application to appeal a decision of the FTT and not the ICO. This is not a full merits review, but just an appeal on errors of law. That is one of the reasons why I refused to attend the imposed oral hearing because it was simply unnecessary.

As we know by now the law is something that the FTT and the UTT can just ignore if they feel like it. There is one rule for them and another for the rest of us.

M Boyce left an annotation ()

So what could have happened at the Upper Tribunal hearing last Tuesday?

One of three possible outcomes:

(1) The Judge has decided to strike out the application. But on what grounds? There are no legal grounds to do so according to the Upper Tribunal Rules 2008.

(2) The Judge has decided it is not in the interests of justice to proceed with the application. Why is it not?

(3) The Judge decides to proceed with the hearing with just my written submissions. Effectively now a paper consideration.

If scenario (3) occurs (and which is the most likely) then it raises the obvious and unavoidable question of why the determination of the application could not have been made on the papers in the first place - over six months ago.

An oral hearing has to be either requested by an applicant or directed by the Judge. The two Judges in my case directed an oral hearing to try and save some money, and not because it was necessary.

The Judges have declared that this was fair. Who was it fair to? It has denied me a possible opportunity of a request for an oral renewal - which is a legal right, despite what the two judges say.

So the most likely scenario is that the case will be decided on the papers. I will have had to wait well over six months for this, and I will be denied any opportunity to request an oral renewal should the Judge ignore my grounds of appeal (as they often do) This makes a complete mockery of the notion of justice in this country, and it is there for the whole world to see.

J Roberts left an annotation ()

'But, I have proven throughout this thread that judges, when it suits their agenda, just simply ignore the law.'

Regarding the Guidance, you might be told that 'the Commissioner's Guidance is not binding' or that 'we note the Guidance but...' or 'the Guidance is only guidance' or 'the Guidance is not the same as the law' rather than something like: 'as the Commissioner points out in her Guidance' or 'the FTT failed to correctly apply the Guidance'.

Where a tribunal acts in a manner at such variance with the Commissioner's Guidance as you have described, then the value of the Guidance is seriously undermined. If the tribunal acts lawfully, shouldn't the Guidance be radically changed? How could the Commissioner's Guidance be so wrong?

M Boyce left an annotation ()

Yes I agree. The ICO's Guidance is just that: it is not legally binding, and the case law of 'Dransfield' merely describes it as persuasive and 'soft law' at best.

First-tier Tribunal decisions are also not case law.

The UTT case law of Dransfield appears to indicate that there is a cut-off point: the request under consideration, but this is only discussed under the sub-heading of burden. What about motive and value etc.?

If the request, or the authority's response to it, does mark a legal cut-off point, then what about the future?

It is very common for an authority and the FTT to invoke the future burden, motive etc. when making their argument that the request is vexatious. Does the future not come after the request? Or is it back to the future?

There needs to be further case law to help clarify all this.

M Boyce left an annotation ()

Actually I don't think there does need to be further clarification. In UTT 'Dransfield' it states at paragraph 66:

'....was THIS REQUEST vexatious in the light of the PREVIOUS course of dealings...'

Previous course of dealings to the request under dispute.

This is binding case law. The FTT in my case was just ignoring this when it decided to take into account other requests which occurred months later and on an entirely different subject matter.

Will the Upper Tribunal agree with the FTT that I, and not just the request, am vexatious, and that evidence that post-dates the request can be considered?

Yes, of course they will. They too will ignore the law.

J Roberts left an annotation ()

I appreciate your summary of the 3 possible outcomes.

Some may think options 1 and 2 are draconian but option 3 is fair. But option 3 includes no right to request an oral renewal. It stops you dead.

M Boyce left an annotation ()

It still leaves the option of judicial review, but this is difficult and potentially VERY expensive.

I know about judicial review, since I've done it before. I lost, but only because the Judge ignored the evidence. What a novelty!

I am still considering entering the arena again, but this time it will be even more perilous - the Upper Tribunal will have all the money in the world to instruct legal counsel, and they will have the lead Judge himself, Judge Wikeley, the author of the section 14 case law, and who is already more than a little bit peeved with me, wading in.

I have right on my side, but they will have might on theirs.

J Roberts left an annotation ()

Very expensive.

From 2014:

[2014] EWHC 4364 (Admin)

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

74. MR MAURICI: My Lord, the schedule, the total figure is £80,654.35. If it assists, given that we make clear that we would give very careful consideration as to whether we would enforce the order, we are prepared to have an order for detailed assessment, so the court does not have to spend time dealing with that now; it would only arise if we actually decided in due course to enforce the order.'

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

M Boyce left an annotation ()

Yes, but they can't take what I haven't got.

M Boyce left an annotation ()

https://www.gov.uk/administrative-appeal...

So it seems you can get a paper consideration from the lead UC Judge if you've got a masters degree in English Language. If not, you will get an imposed oral hearing in order to allegedly save a few quid.

I must enrol at the local college so I can learn to write proper, and not like the village idiot.

M Boyce left an annotation ()

Why has the above link disappeared?

J Roberts left an annotation ()

Something might need correcting. If it reappears at a different location, search using the Appellant's name:

Osifeso v Information Commissioner [2022] UKUT 146 (AAC)

Authorised for issue on 1 June 2022

'1. This appeal concerns the role and powers of the First-tier Tribunal on an application made under section 166 of the Data Protection Act 2018.'

M Boyce left an annotation ()

The above link is working again.

Yesterday I was informed by the ICO that cases referred to them are now taking a minimum of nine months before they are even allocated to a caseworker. The reason for this is given as the pandemic.

This thread details how the First-tier Tribunal have wrongly and illegally accused me of being vexatious - and partly because I asked the ICO for information about their working practices during the pandemic. How shocking and revolutionary! I just wanted to know why the ICO had been so severely affected by the pandemic given that none of their staff had been furloughed and ALL of them were working from home. The First-tier Tribunal judge took great offence to this inquiry - I was labelled as vexatious and only interested in causing disruption to the ICO. This accusation is complete nonsense, and it contravenes the FOIA and any norms of sensible and reasonable behaviour.

Why can't we make reasonable inquires about organisations without FTT judges blowing a gasket?

The best way to remove a citizen's rights to information is to effectively ban them from ever making inquiries again by smearing them as vexatious.