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.