Number of PHSO fresh/new investigations conducted directly after the final report.

M Boyce made this Freedom of Information request to Parliamentary and Health Service Ombudsman

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was refused by Parliamentary and Health Service Ombudsman.

Dear Parliamentary and Health Service Ombudsman,

The PHSO refuse to publicly state whether their review process of final decisions is legally allowed for or not, and consequently whether it is legally challengeable (judicial review) or not. Reviews of final decisions therefore appear to be not legally allowed for or to be legally challengeable. However, what is certainly legally allowed for and what is certainly legally challengeable (judicial review) is a fresh/new complaint/ investigation. Instead of complainants requesting a review of their final decision, it would make much more sense for them to simply request a fresh/new investigation if the complainant believed that serious mistakes were evident in the final report or new evidence had arisen since then. That way the complainant is on sure legal ground instead of being sent down the misleading dead-end that is the sham review process. A new/fresh complaint is not only legally allowed for, but would also allow for a proper investigation. The sham review process as well as being not legally allowed for and not legally challengeable also does not look at the substance of the original complaint. It is a triple shammy.

(1 )Over the last twelve months (October 2017 - October 2018) how many complainants have requested a fresh/new investigation after receiving their final report without having asked for a review of that final report?

(2) How many of those complainants were successful in receiving a fresh/new investigation?

(3) Over the last twelve months (October 2017 - October 2018) how many complainants have themselves requested a fresh/new investigation after receiving a review of their final report?

(4) How many of those complainants were successful in receiving a fresh/new investigation?

(5) Please also provide the most recent PHSO Board Meeting Minutes for 2018.

Yours faithfully,

M Boyce

informationrights@ombudsman.org.uk, Parliamentary and Health Service Ombudsman

Thank you for contacting the Parliamentary and Health Service Ombudsman’s (PHSO) Freedom of Information and Data Protection Team. This is to confirm we have received your request.
If you have made a request for information under the Freedom of Information Act 2000 or Environment Information Regulations 2004, we will respond to your request within 20 working days in accordance with the statutory time frames set out in both Acts.
If you have made a request for personal information held by the PHSO, your request will be processed as a Subject Access Request under the provisions of the Data Protection Act 2018 and will be responded to within one calendar month in accordance with the statutory time frame set out in the Act.
We may contact you before this time if we require further clarification or if we need to extend the time required to complete your request.
For Subject Access Requests, we will send any personal information via secure email, unless you instruct us differently. To access the information on the email we send, you will need to sign up to our secure email service. Details can be found on our website using the link below:
www.ombudsman.org.uk/about-us/being-open...
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InformationRights, Parliamentary and Health Service Ombudsman

3 Attachments

Dear M Boyce,

 

Request for information under the Freedom of Information Act 2000

 

Further to your email dated 12 October, in which you request the
disclosure of information under the provisions of the above Act, we are
now in a position to respond.

 

Your request has been considered vexatious under Section 14(1) of the
Freedom of Information Act 2000.

 

Taking into account your previous correspondence we consider that your
requests are burdensome with a level of unjustified disruption.

 

Given the volume of your previous correspondence, to respond to any new
request would be disruptive and burdensome to PHSO and this would also
engage section 14(1).

 

It is open to you to request an internal review. You can do this by
writing to us or emailing [1][Parliamentary and Health Service Ombudsman request email] . You will
need to specify what the nature of the issue is and we can consider the
matter further. Beyond that, it is open to you to complain to the
Information Commissioner’s Office [2]www.ico.org.uk

 

Yours sincerely,

 

Freedom Of Information/Data Protection Team

Parliamentary and Health Service Ombudsman

W: [3]www.ombudsman.org.uk

 

Follow us on

[4]fb  [5]twitter  [6]linkedin

 

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Dear Parliamentary and Health Service Ombudsman,

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

I am writing to request an internal review of Parliamentary and Health Service Ombudsman's handling of my FOI request 'Number of PHSO fresh/new investigations conducted directly after the final report.'.

I do not regard my request as vexatious. You may regard it as burdensome because you do not want to disclose the requested information or other similar information. To suggest supplying the requested information would cause unjustified disruption is utter nonsense. It would be neither unjustified nor disruptive.

Section 14 of the FOIA is being used by the PHSO to try and shut me up and to close down my entirely legitimate and reasonable enquires. It will not work. You see me as a threat to your professional reputation, but YOU are doing the damage to your reputation by not being open and honest, and by being unfair and unreasonable. It is wrong to try and stop me trying to hold you to account for things that you are doing that are not fair and are not right. I will be contacting the ICO after you have responded and then probably the First-Tier Tribunal.

The public will make up their own mind as to whether my enquires in this area are unjustifiably disruptive.

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

Yours faithfully,

M Boyce

informationrights@ombudsman.org.uk, Parliamentary and Health Service Ombudsman

Thank you for contacting the Parliamentary and Health Service Ombudsman’s (PHSO) Freedom of Information and Data Protection Team. This is to confirm we have received your request.
If you have made a request for information under the Freedom of Information Act 2000 or Environment Information Regulations 2004, we will respond to your request within 20 working days in accordance with the statutory time frames set out in both Acts.
If you have made a request for personal information held by the PHSO, your request will be processed as a Subject Access Request under the provisions of the Data Protection Act 2018 and will be responded to within one calendar month in accordance with the statutory time frame set out in the Act.
We may contact you before this time if we require further clarification or if we need to extend the time required to complete your request.
For Subject Access Requests, we will send any personal information via secure email, unless you instruct us differently. To access the information on the email we send, you will need to sign up to our secure email service. Details can be found on our website using the link below:
www.ombudsman.org.uk/about-us/being-open...
If you require us to post your personal information to you instead you will need to inform us of this and confirm your current address as soon as possible.

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Dear Parliamentary and Health Service Ombudsman,

You have not responded within the required 20 working days. If you do not respond within the next 24 hours then I will contact the ICO. This will then be my fourth request to the PHSO that I will have referred to the ICO.

I would ask you to please consider the public purse before you force me down this road again.

Yours faithfully,

M Boyce

informationrights@ombudsman.org.uk, Parliamentary and Health Service Ombudsman

Thank you for contacting the Parliamentary and Health Service Ombudsman’s (PHSO) Freedom of Information and Data Protection Team. This is to confirm we have received your request.
If you have made a request for information under the Freedom of Information Act 2000 or Environment Information Regulations 2004, we will respond to your request within 20 working days in accordance with the statutory time frames set out in both Acts.
If you have made a request for personal information held by the PHSO, your request will be processed as a Subject Access Request under the provisions of the Data Protection Act 2018 and will be responded to within one calendar month in accordance with the statutory time frame set out in the Act.
We may contact you before this time if we require further clarification or if we need to extend the time required to complete your request.
For Subject Access Requests, we will send any personal information via secure email, unless you instruct us differently. To access the information on the email we send, you will need to sign up to our secure email service. Details can be found on our website using the link below:
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Dear Parliamentary and Health Service Ombudsman,

Now sent off to the ICO to investigate.

Yours faithfully,

M Boyce

informationrights@ombudsman.org.uk, Parliamentary and Health Service Ombudsman

Thank you for contacting the Parliamentary and Health Service Ombudsman’s (PHSO) Freedom of Information and Data Protection Team. This is to confirm we have received your request.
If you have made a request for information under the Freedom of Information Act 2000 or Environment Information Regulations 2004, we will respond to your request within 20 working days in accordance with the statutory time frames set out in both Acts.
If you have made a request for personal information held by the PHSO, your request will be processed as a Subject Access Request under the provisions of the Data Protection Act 2018 and will be responded to within one calendar month in accordance with the statutory time frame set out in the Act.
We may contact you before this time if we require further clarification or if we need to extend the time required to complete your request.
For Subject Access Requests, we will send any personal information via secure email, unless you instruct us differently. To access the information on the email we send, you will need to sign up to our secure email service. Details can be found on our website using the link below:
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InformationRights, Parliamentary and Health Service Ombudsman

Dear M Boyce,

 

Internal Review of Freedom of Information Request

 

I write in response to your email of 31 October in which you request an
Internal Review of our response to your request for information. I have
reconsidered your correspondence and our response to you.

 

I have re-evaluated the handling of the request and of the use of the
Section 14 (1) (vexatious) exemption in our response to you. After
thorough consideration of your request, your previous correspondence and
our response to you I do not uphold your complaint. I maintain that the
use of the S14 (1) exemption in our original response.

 

If you remain unhappy with our response, it is open to you to complain to
the Information Commissioner’s Office ([1]www.ico.org.uk).

 

Yours sincerely,

 

Angharad Jackson

Data Protection Officer & Assistant Director Information Assurance

Office of the Parliamentary and Health Service Ombudsman

 

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Dear InformationRights,

The ICO have already been asked to investigate.

Yours sincerely,

M Boyce

Informationrights@ombudsman.org.uk, Parliamentary and Health Service Ombudsman

Thank you for contacting the Parliamentary and Health Service Ombudsman’s (PHSO) Freedom of Information and Data Protection Team. This is to confirm we have received your request.
If you have made a request for information under the Freedom of Information Act 2000 or Environment Information Regulations 2004, we will respond to your request within 20 working days in accordance with the statutory time frames set out in both Acts.
If you have made a request for personal information held by the PHSO, your request will be processed as a Subject Access Request under the provisions of the Data Protection Act 2018 and will be responded to within one calendar month in accordance with the statutory time frame set out in the Act.
We may contact you before this time if we require further clarification or if we need to extend the time required to complete your request.
For Subject Access Requests, we will send any personal information via secure email, unless you instruct us differently. To access the information on the email we send, you will need to sign up to our secure email service. Details can be found on our website using the link below:
www.ombudsman.org.uk/about-us/being-open...
If you require us to post your personal information to you instead you will need to inform us of this and confirm your current address as soon as possible.

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phsothefacts Pressure Group left an annotation ()

Open, transparent and reaching out to the public says Rob Behrens of the new look PHSO. Then closes down FOI requests when it is ‘too much trouble’ to respond.

M Boyce left an annotation ()

They certainly do regard my requests as 'trouble'. My requests are entirely legitimate, entirely fair, and not too burdensome, but as you get closer to what an organisation has to hide then the shutters always come down.

The PHSO is a thoroughly dangerous organisation that works only to protect the establishment and to cover-up wrongdoing by those in power. We will put an end to this.

J Roberts left an annotation ()

If the Commissioner backs the PHSO, here is an F-tT decision you might like to consider:

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

"26 The requests are of clear value to Mr. Swift and we find that his motive in pursuing them in the circumstances was not obsessive or disproportionate...Further we find that the exposure of potential misfeasance in public office is a matter of objective public interest. So too, is the exposure, inter-alia of evidence of alleged overcharging, withholding information from the public alleged systematic overcharging and fraud by a contractor. We find that the request had an adequate and proper justification.

28 We do not find that the request would or should cause harassment or distress to staff."

M Boyce left an annotation ()

Thanks J Roberts.

Section 14 is used by the establishment to silence those who threaten to reveal its wrongdoings.

M Boyce left an annotation ()

:
IN THE FIRST-TIER TRIBUNAL Appeal No: EA/2019/0334/P GENERAL REGULATORY CHAMBER (INFORMATION RIGHTS)
ON APPEAL FROM:

The Information Commissioner’s Decision Notice Nos: FS50835684 Dated: 14 August 2019

Appellant: Mr M Boyce

Respondent: The Information Commissioner

Decided on the papers

Date of decision: 28 May 2020

Before
HH Judge Shanks

Subject matter:
Freedom of Information Act 2000 (FOIA)
Section 14: vexatious requests Appeal No: EA/2019/0334/P
2

DECISION OF THE FIRST-TIER TRIBUNAL

For the reasons set out below the Tribunal dismisses the appeal.

REASONS FOR DECISION

Introduction

1. On 12 October 2018 the Appellant, Mr Boyce, made a FOIA request addressed to the Parliamentary and Health Services Ombudsman (PHSO) in the following terms:

The PHSO refuse to publicly state whether their review process of final decisions is legally allowed for or not, and consequently whether it is legally challengeable (judicial review) or not. Reviews of final decisions therefore appear to be not legally allowed for or to be legally challengeable. However, what is certainly legally allowed for and what is certainly legally challengeable ... is a fresh/new complaint/investigation. Instead of complainants requesting a review of their final decision, it would make more sense for them to simply request a fresh/new investigation if the complainant believed that serious mistakes were evident in the final report or new evidence had arisen since then. That way the complainant is on sure legal ground instead of being sent down the misleading dead-end that is the sham review process. A new/fresh complaint is not only legally allowed for, but would also allow a proper investigation. The sham review process as well as being not legally allowed for and not legally challengeable also does not look at the substance of the original complaint. It is a triple shammy.

[1] Over the last twelve months (October 2017 – October 2018) how many complainants have requested a fresh/new investigation after receiving their final report?

[2] How many of those complainants were successful in receiving fresh/new investigation?

[3] Over the last twelve months ... how many complainants have themselves requested a fresh/new investigation after receiving a review of their final report?

[4] How many of those complainants were successful in receiving a fresh/new investigation?

[5] Please also provide the most recent PHSO Board Meeting Minutes for 2018.

2. The PHSO responded on 31 October 2018 saying that, taking into account previous correspondence from Mr Boyce, the request was considered vexatious under section 14 of FOIA. On the same day Mr Boyce requested a review of the decision under FOIA. The decision was confirmed by the PHSO following a review on 4 December 2018.

3. In the meantime, Mr Boyce had already complained to the Information Commissioner on 1 December 2018. The Commissioner issued a decision notice on 14 August 2019 upholding the PHSO’s view that his request was vexatious. On 7 September 2019 he appealed to this Tribunal against the Commissioner’s decision notice.

4. The parties submitted that the appeal should be decided on the papers and I agree that that is appropriate. Further, having regard to the current pandemic and the Senior President’s Practice Direction of 19 March 2020 I consider it is appropriate that it is determined by a judge sitting alone. I have considered an open bundle of relevant documents running to 171 pages, Mr Boyce’s second submission sent on 26 October 2019 and, as requested in his second submission, the papers in a related case (EA/2019/0032) concerning a request made of the PHSO on 31 July 2018, in particular his fourth submission in that case; I have reached my own view on the basis of this material as to whether the Commissioner’s decision is correct.

The relevant law

5. Under section 1(1) of FOIA a public authority is generally obliged to disclose information which it holds on request. However, section 14(1) of FOIA provides:

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

6. The proper interpretation of this provision has been considered authoritatively by the Upper Tribunal and Court of Appeal in the Dransfield case ([2012] UKUT 440 (AAC) and [2015] EWCA Civ 454) and by the Upper Tribunal in CP v Information Commissioner [2016] UKUT 427 (AAC) and Cabinet Office v IC and Ashton [2018] UKUT 208 (AAC). The following propositions are well established:
(1) The issue is whether the request is vexatious and not whether the requester is vexatious;
(2) Parliament has not defined the word “vexatious”: it is an inherently flexible concept; it connotes a “manifestly unjustified, inappropriate or improper use of a formal procedure”;
(3) In considering whether such misuse of the procedure is established in any case all relevant circumstances must be considered and a balanced conclusion reached based on an objective standard;
(4) In deciding whether a request is vexatious four factors are likely to be relevant: (a) the burden on the public authority and its staff; (b) the motive of the requester; (c) the value or serious purpose of the request; and (d) any harassment or distress of and to staff; but this is not an exhaustive list of relevant factors and should not be treated as a formulaic check list;
(5) The previous behaviour of the requester and the number, breadth and pattern of previous FOIA requests may be relevant in considering whether a request is vexatious by, for example, throwing light on the requester’s motivation for making the request in question or by placing the burden involved in answering that request in its proper context;
(6) A clear public interest in the subject matter of the request is a consideration which needs to be balanced against other factors, but it is not a “trump card” which always tips the balance against a finding of vexatiousness (see: in particular paras [25] and [26] of the Cabinet Office case).

Relevant background to requests

7. Under the Parliamentary Commissioner Act 1967 (which is the relevant Act for these purposes) the PHSO has a wide discretion as to whether to investigate a relevant complaint of maladministration leading to injustice and how to carry out the investigation. The outcome of any investigation is a report sent to the relevant MP under section 10(1) of the Act. There is no express provision in the legislation allowing or requiring the PHSO to carry out any further review once he has issued a report and, on general principles, the position would be that once a report is delivered the PHSO would be considered functus (i.e. his functions under the legislation are regarded as complete). However, it seems that in practice the PHSO has provided for reviews to take place in certain limited circumstances after the delivery of a report. It is right to say that the legal status and possible outcome of such a review are not entirely clear but it is suggested that a review may lead in principle to a completely fresh investigation and report if circumstances required. It is clear that the question of internal reviews has been under consideration by the PHSO and by the Public Administration and Constitutional Affairs Committee (PACAC) over the last few years and has been the subject of legal advice to the PHSO.

8. So far as Mr Boyce himself is concerned, I have pieced together the story as best I can from the papers. It seems that he had a claim for working tax credit which was mishandled by HMRC. He appealed successfully and was awarded compensation by the Adjudicator’s Office, which deals with complaints about the conduct of HMRC. Although the published advice was changed as a result of points he made, Mr Boyce remained unhappy with the way the Adjudicator’s Office dealt with his complaints about advice contained in various HMRC documents relating to back-dating of working tax credit claims and he took this up with the PHSO.

9. He received the PHSO’s final report rejecting his complaint against the Adjudicator’s Office on 31 October 2017. He was not happy with the PHSO’s decision and on 19 November 2017 he requested a review. He was told it would take at least 12-16 weeks for the PHSO’s customer care team to decide whether to conduct a review.

10. On 3 December 2017 he sent the PHSO a letter before claim relating to a proposed judicial review claim. He was told by the PHSO on 16 December 2017 that he had three months from the date of the PHSO’s decision to bring a judicial review claim and that the Court would not extend the time because a request for a review had been made. He made an application for judicial review on 19 January 2018.

11. On 9 February 2018 the PHSO lodged his grounds for opposing the application. There is an extract from the grounds at pp 127-9 of the first bundle of documents in the EA/2019/0032 case (Mr Boyce’s document 12A): the PHSO informed the Court that Mr Boyce has requested a review and states that this may to some extent afford him the relief he seeks and invites the Court to stay the claim pending his decision on whether to carry out a review and (if so) the outcome of the review; but it asks in the alternative (and in any event) that the Court dismiss the application on the grounds that it is unarguable for the reasons set out (which I have not seen).

12. On 21 February 2018 Lavender J considered the papers and refused Mr Boyce permission to seek judicial review. The judge pointed out that given the wide discretion given to the PHSO a claimant “faces a high hurdle in seeking to persuade a court that [the PHSO] has acted unlawfully” (which is the test for judicial review). The judge concluded that it was not arguable that the PHSO had made an error of law in Mr Boyce’s case in concluding that the Adjudicator’s Office had followed its own procedures and had taken appropriate steps to investigate his original complaint. He also decided that Mr Boyce’s application was “totally without merit”, meaning that he was not entitled to request a hearing to reconsider whether he should have permission to apply for judicial review. No order for costs was made. It appears that this decision was not communicated to the parties for over a month although they were aware that the papers had already been considered by a judge.

13. On 9 March 2019 the PHSO’s legal team informed Mr Boyce that the customer care team had decided that his request for an internal review should be granted. He was also informed at some stage that the review process would take ten weeks.

14. Before the internal review was carried out Mr Boyce was notified of Lavender J’s decision by letter dated 28 March 2018.

15. It is plain that Mr Boyce felt (and continues to feel) very aggrieved by this course of events (see in particular his contemporaneous notes on whatdotheyknow.com at pp 80 to 86 of the bundle in this case). He considered that the PHSO had pushed him prematurely into applying for judicial review causing him to incur £2,000 in costs and worry and stress. He clearly regarded it as wrong that the PHSO should on the one hand entertain a review while at the same time maintaining to the Court that his application for judicial review was totally without merit. He considered that the outcome of any internal review would inevitably go against him in the light of the judge’s decision, meaning that there had been a successful “stitch up”. And he said that the process was a “sham that masquerades as justice”.

16. I have not been able to find a copy of the review outcome in the papers but it seems from a note left by Mr Boyce on whatdotheyknow.com on 25 June 2018 that he had received it a few weeks before then and that the document offered apologies and stated that the PHSO had made mistakes in the decision but did not offer any further action.

17. Between March and October 2018 Mr Boyce made a series of requests addressed to the PHSO under FOIA on the same general theme as those I am concerned with in this appeal. They are set out at pages 54-56 of the bundle in this case (though the dates on those pages appear to be wrong in places and I note that it may be that there were others, for example the requests at page 138 in the bundle). Including the five requests in issue in this appeal, there are 28 individual requests listed at pages 54-56 in the period up to 12 October 2018. They include two requests for documents including “legal briefing notes” relating to the review process which were made on 31 July 2018 and which the PHSO refused to answer under section 42 of FOIA on the grounds that they were subject to legal professional privilege; those requests are the subject of a separate appeal (EA/2019/0032) which I am not concerned with though, as indicated, I have considered the documents in that appeal as requested by Mr Boyce.

18. During the period March to October 2018 Mr Boyce was openly expressing his views about the issues in strong terms on the whatdotheyknow.com website. I set out a selection of relevant statements with dates and (where appropriate) context:

[23 March 2018: see page 64 in bundle]
... even if they [PHSO] play that card [presumably a reference to section 12 of FOIA] I will not let this go. I will refine the request down until it does fall within cost, and then keep sequentially repeating it until I have all the information. This is not one they are going to win – at least not without one hell of a fight.
[15 May 2018]
Hi Richard
...
Forget any notion of fairness when it comes to the PHSO. They will fight tooth and claw to cover-up wrongdoing by the establishment...
... now, like me, that you are already deeply involved with this pernicious organisation I would urge you to fight them as tenaciously and bloodily as they will fight you.
The review of your decision will be a stitch-up, you can bank on that. They will tell you that it will be conducted fairly and objectively – utter cobblers.
...
My caseworker was barely literate and could not even tie his own shoelaces ...
[16 May 2019]
The PHSO have clearly lied to PACAC and PACAC knows this. When I spoke to the clerk of PACAC on the phone to ask if they would investigate this issue he said- not a chance, and he was nasty with it too!

[15 June 2018]
The PHSO have demonstrated that they cannot be trusted to deliver a fair, transparent and unbiased service ...
This unaccountable quango is wasting tens of millions of pounds of tax-payer money every year and is rewarding failure on an industrial scale. How much longer can this farce continue?
[19 June 2018]
The PHSO is an organisation that is rotten from top to bottom, and sadly they are being allowed to get away with it by PACAC. They operate with a mixture of gross incompetence, utter disregard and misconduct of the most serious nature. They HAVE to be stopped because they are causing untold distress to people who deserve to be treated fairly and with dignity and respect. Rob Behrens [the Ombudsman himself] sits in his ivory tower picking up his enormous tax-payer funded salary as he fiddles while Rome burns. I will not rest until I have done everything I can to bring this pernicious organisation to account, and I know I am not alone as many others on this site feel the same way and are also prepared to not just sound-off about this injustice, but are prepared to act to end it.
[26 June 2018]
The PHSO is ‘not working properly’ (a euphemism for a disgraceful shambles) at every level:
Caseworkers are not properly trained and some are barely literate. Some may care, but others couldn’t care less;
Casework managers are lazy, incompetent and work to actively endorse poor decision-making by their caseworkers, however egregious it may be;
The Customer Care Team, although usually very friendly and outwardly helpful on the phone, are woefully understaffed and undertrained.
Senior CCT staff are astonishingly indifferent and incompetent;
The PHSO legal team are nothing but legal amateurs who play fast and loose with the law like it’s a big game. They have unlimited access to fancy lawyers at tax-payer expense;
Mr Behrens and Amanda Campbell [the CEO] both sit in unaccountable splendour, the former larking around doing radio interviews with all and

sundry about nothing, and the latter just doing nothing, when they should be taking control
[5 July 2018; in response to the PHSO in relation to his response to a request about the template cover letter for decisions]
You are clearly being deliberately obstructive now...
The July 2017 template is clearly failing to inform complainants of their right to request a review of their final reports. This is a deliberate omission ... of the most serious nature ... I will repeatedly ask my MP to ask PACAC to investigate this serious matter ...
[9 August 2018]
It is now very clear that the PHSO refused to supply ... requested information because it would further expose their sham review process.
... The sham review process exists only to deceive and attempt to mollify complainants. It is now time for them to finally admit this and admit that they have been deceiving people for many years.

19. 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. It is therefore noteworthy that Mr Boyce continued to make statements of a similar nature to those set out above after being informed that his request was considered vexatious. On 31 October 2018 he stated:

Section 14 of the FOIA is being used by the PHSO to try to shut me up and to close down my entirely legitimate and reasonable enquiries. It will not work. You see me as a threat to your professional reputation, but YOU are doing the damage to your reputation by not being open and honest, and by being unfair and unreasonable. It is wrong to try and stop me trying to hold you to account for things that you are doing that are not fair and are not right. I will be contacting ICO after you have responded and then probably the First-tier Tribunal.
The public will make up their own mind as to whether my enquiries in this area are unjustifiably disruptive ...

On 5 December 2018 he stated:

They certainly do regard my requests as ‘trouble’. My requests are entirely legitimate, entirely fair, and not too burdensome, but as you get closer to what an organisation has to hide then the shutters always come down.
The PHSO is a thoroughly dangerous organisation that works only to protect the establishment and to cover-up wrongdoing by those in power. We will put an end to this.

And, in the context of these proceedings, he states quite openly in his second submission made on 26 October 2019 that he stands by his position that the PHSO’s review process is a “blatant sham” which is “dangerous and corrupt”, that he has suffered outrageous and blatant injustice from the PHSO and that it is “a rotten organisation” which has supplied him with “inaccurate, inconsistent and down-right false information”.

Consideration of relevant factors

20. Burden on public authority and staff: Between March and October 2018 Mr Boyce made at least 28 individual FOIA requests on the same general theme as those in issue in this appeal. Although there is no suggestion that individually they involved a particular burden on the PHSO and his staff, it is plain that a large number of requests are likely to involve a large amount of time and effort to deal with over the relevant period. Requests [1] to [4] of the FOIA request of 12 October 2018 seek numbers of cases in various categories over a twelve-month period. The PHSO has not put in specific evidence but it seems likely that obtaining the answers to these requests would involve a trawl for information on individual cases throughout his organisation.

21. Motive of requester: Mr Boyce clearly feels that he personally has been the victim of grave injustice in all this. I do not doubt the sincerity of his feelings but I do question how justified they are when things are looked at objectively. As Lavender J pointed out in his decision, Mr Boyce’s initial complaint about HMRC resulted in a successful appeal in relation to his working tax credit, compensation for the way his claim had been handled and changes to the published advice as a result of points he had made. His complaint about the Adjudicator’s Office’s investigation of his complaints about the published advice was rejected by the PHSO and Lavender J considered that there was no basis for suggesting that the PHSO had made any error of law in his investigation. The advice given by the PHSO in relation to the time limits for bringing an application for judicial review notwithstanding Mr Boyce’s request for an internal review was correct and helpful; it was Mr Boyce’s decision to bring the claim for judicial review. The PHSO properly invited the Court to stay the judicial review claim pending any internal review but Lavender J decided the application was hopeless on the merits and took the decision to reject it accordingly at the earliest stage. The test for a successful judicial review (namely whether the PHSO had made an error of law in carrying out the investigation and/or making the report) involves, as the judge put it, a “high hurdle”, particularly given the very wide discretion which the legislation gives to the PHSO. Although some of Mr Boyce’s submissions appear to be based on the proposition that a judicial review and an internal review are somehow the same thing, there is no such hurdle when the PHSO considers whether to carry out an internal review: the two processes may proceed in parallel and impinge on each other but they are quite different.

22. Notwithstanding the lack of objective justification for his feelings of injustice, it is clear from his conduct and statements that Mr Boyce considers that they entitle him to wage a campaign against the PHSO. This is a campaign that he is prepared to fight “tenaciously and bloodily” to the end and in fighting it he will make maximum use of FOIA and its procedures. It is reasonable to infer that this campaign has become something of an obsession for him and that it would continue in a similar vein even if the requests we are concerned with in this appeal were answered in full.

23. Value and serious purpose of request: On considering the papers it is plain to me that the position in relation to the PHSO’s internal review process is in a muddle and needs sorting out, although it is fair to say that the lack of express provision for such a process in the legislation has made life difficult. Further, it is plain that, given that the PHSO’s very purpose is to investigate maladministration by public authorities, there is a weighty public interest in disclosure of any substantial information bearing on the review process. The information requested by Mr Boyce on 12 October 2018 is relevant statistical information about how complaints made to the PHSO about his investigations have been dealt with over a twelve-month period. I consider that, objectively speaking and looked at in isolation, the request was of some value and had a serious purpose.

24. Harassment and distress to staff. I refer to the statements put in a public forum set out above, all of which are closely connected to the subject matter of the FOIA requests in issue. They speak for themselves. Mr Boyce makes really fundamental attacks on the PHSO’s integrity and competence for which I can see no justification. Many of the statements involve personal attacks on the Ombudsman himself (and his CEO), but they go wider and involve attacks on his staff and on their integrity and competence. The request itself unnecessarily repeats Mr Boyce’s view that the review process is a sham. Although there is no evidence of direct insults or harassment aimed at individual members of staff it is reasonable to infer that the staff who are administering the Ombudsman scheme may well feel harassed and upset by having to deal with Mr Boyce’s requests which, as I infer, are part of his unjustified campaign, knowing of his publicly expressed views about themselves and the organisation they work for.

Conclusion and disposal

25. I have considered whether Mr Boyce’s FOIA request was “vexatious” taking account of all the relevant circumstances. I accept his points that dealing with the request itself would not involve a great burden and that it had some value and serious purpose and that there was some public interest in the disclosure of the information he was seeking. However, that must be balanced against my strong conclusions (a) in relation to his motivation in making the request and (b) that it is part of an unjustified and obsessional campaign in which he will use whatever methods he considers helpful to him and (c) its effects on the staff and the organisation. Overall, I have reached the clear conclusion that Mr Boyce was using the FOIA process in a way that was manifestly unjustified, inappropriate or improper and that his request was rightly categorised as “vexatious”.

26. I am therefore satisfied that the Commissioner reached the right conclusion when she decided that Mr Boyce’s FOIA request of 12 October 2018 was vexatious and I dismiss his appeal.

HH Judge Shanks
28 May 2020

M Boyce left an annotation ()

Needless to say I am very unhappy with the above Tribunal decision. Although a judge is fully entitled to come to a decision they see as correct, this decision should be based on the full and correct evidence. In this case it is not.

The judge considered the case sitting alone. Although presumably this is legal, it does however seem very unfair. The other two lay Tribunal members are important for balance of opinion and to make sure that things are not missed or misunderstood, especially when there is no hearing.

The judge says he has 'pieced together the story as best he can from the papers.' Surely it would only be fair to piece together the story properly and fully.

The judge completely inaccurately claims that I received a successful outcome and compensation from the Adjudicator's Office. This is categorically not correct.

The judge claims that I incurred costs of £2000. This is not correct.

The judge claims he has been unable to find a copy of the most crucial and vital document in the Tribunal bundle. Why didn't he ask me for a further copy?

The judge says in paragraph 21 that, unlike judicial review, there is no 'high hurdle' to receiving a PHSO internal review. Try telling that to the 99% of complainants who ask for a review, but are denied one because it is such a high hurdle to get one.

The judge says there is no objective justification for my dissatisfaction with the PHSO review process. I provided the Tribunal with a multitude of evidence to the contrary.

The judge says in paragraph 23 that the PHSO review process is 'in a muddle and needs sorting out.' But I must not be allowed to request information to help this happen. He also states that there is 'a weighty public interest in disclosure of any substantial information bearing on the review process.' But apparently this is not 'objective justification' for my dissatisfaction or wanting information about this 'muddle'.

In paragraph 24 the judge says he can see no justification for my attacks on PHSO integrity and competence. Plenty of other people can.

M Boyce left an annotation ()

The decision also says:

'As Lavender J pointed out in his decision, Mr Boyce's initial complaint about HMRC resulted in a successful appeal in relation to his working tax credit, compensation for the way his claim had been handled and changes to the published advice as a result of points he had made.'

My appeal was found not upheld, I was not paid any compensation by the Adjudicator's Office, and although HMRC advice was indeed changed - the changes that were made made the advice even more contradictory and confusing and HMRC then spent several more years trying in vain to put it right.

None of that was mentioned by either Judge Lavender or Judge Shanks.

There is both objective evidence for my dissatisfaction with my initial complaint to the PHSO about HMRC and the Adjudicator's Office, and even more importantly there is a huge amount of objective evidence for my dissatisfaction with the PHSO review process - as it affects everyone and certainly not just me.

J Roberts left an annotation ()

"The judge says in paragraph 23 that the PHSO review process is 'in a muddle and needs sorting out.' But I must not be allowed to request information to help this happen. He also states that there is 'a weighty public interest in disclosure of any substantial information bearing on the review process.' But apparently this is not 'objective justification' for my dissatisfaction or wanting information about this 'muddle'."

Your comment reminded me of one I recently made in connection with the recent PACAC annual PHSO Scrutiny, during which the Chair, William Wragg MP, stated that he would be writing to the Ombudsman:

"A fair portion of his questions concern the Ombudsman's handling of Mr Hart's complaint e.g. his case being passed to ill-informed caseworkers, caseworkers failing to communicate appropriately, personal information being misused and evidence not being properly weighed. He has also asked for details of the actions proposed by the Ombudsman to remedy failings found by the review." (questions 7-11)

https://twitter.com/CommonsPACAC/status/...

It is a sad day indeed when a requester is attacked for seeking clarity and for raising concerns similar to those raised by Mr Wragg MP. In a recent decision Lord Singh, at paragraph 69, observed:

"It is important that the legislation in this country governing social security should be interpreted in a way which conforms to practical reality, given the potential impact on some of the poorest people in society."

http://www.bailii.org/ew/cases/EWCA/Civ/...

PHSO review "muddles" look set to continue regardless of their impact on some of the most distressed people in our society.

M Boyce left an annotation ()

Thanks J Roberts.

PHSO 'muddles', though I consider my description of the review process as a sham much more accurate, do look very likely to continue.

My final case with the Tribunal, EA/2019/0032, should be heard sometime in the future, and I have now no choice but to let the Tribunal in that case know that my faith in the fairness of the Tribunal process is now well and truly in tatters. If a Tribunal cannot even summon the interest to look at the most crucial evidence, then what is the point of anyone bothering to take their case to it? I feel quite despondent about the whole thing now.

M Boyce left an annotation ()

Notice just how important the annual 'scrutiny' meeting with PACAC is to the PHSO. It was held several weeks ago and has gone without a single word of mention on the PHSO website. It passes them by like a breeze in the wind and with just as little notice.

On the subject of my recent Tribunal Decision EA/2019/0334 it is worth expanding a little on what the Judge said in paragraph 21: there is no high hurdle to obtaining a PHSO internal review, unlike the high hurdle to obtaining a judicial review. Figures from the Institute for Government show that in 2018 there were 3,597 claims for judicial review, and of those 184, or about 5% of cases were granted a review. Compare that to number and percentage of cases that were granted a PHSO internal review. In 2017/18 PHSO received 1724 review requests and completed 63 reviews, of which 28 were upheld. This equates to around 3.7% of cases that were granted a review. So 5.0% in judicial review and 3.7% in PHSO internal review. Yet the judge claims the judicial review percentage is a 'high hurdle' and yet the PHSO internal review percentage is NOT a 'high hurdle'.
This is what anyone wishing to challenge the PHSO's not legally allowed, 'muddled' and in 'need of sorting out' review process is up against.

J Roberts left an annotation ()

The Judge preferred the the word 'muddle' to 'sham'. Regardless of the word used, the practical outcome for complainants is generally the same – misery. PACAC raised some matters the PHSO would not like publicised, so I can understand their reluctance to publish these details. But what of the responses to PACAC's written questions – will they have to be requested or will they appear on the website?

PACAC questions:

https://twitter.com/CommonsPACAC/status/...

One thing they have published, however, is details of the data breach (5,300 names); but they may have been obliged to do this and I'm not sure how easy the information is to find on the website:

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

You give an excellent summary of how little chance a complainant has in having a complaint upheld. Sadly, hardly any of those who approach the organisation for help are aware of the odds.

For example, the chance of having a parliamentary complaint upheld is remote (the figures relate to 2018/19):

“To uphold just 38 cases from a total of 5,744 submitted gives an uphold rate of just 0.6%. In other words 99.4% of the people who took the trouble to make a complaint about a parliamentary body did so without any just cause. Remarkable. Why would so many people waste their time on nonsense complaints?”

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

I think 'PHSOthetruestory' has done a great job with their latest blog post.

A complainant who featured in an anonymised example used by the PHSO to show how good they are has provided her side of the story. It's very different! The PHSO account (not surprisingly) omits all the misery the organisation caused her:

https://phsothetruestory.com/2020/05/17/...

And the reviews on Trustpilot speak for themselves:

https://www.trustpilot.com/review/www.om...

M Boyce left an annotation ()

Absolutely. Why would 99 .4% of people waste their time on nonsense- unjustified complaints? Of course, they wouldn't, and I don't believe that 99.4% of complainants are obsessive either. The judge calls my 'objectively unjustified' dissatisfaction with the PHSO review process as obsessional behaviour. If I lived in North Korea I would be shot, but in the UK those who challenge establishment wrongdoing are silenced by being accused of being vexatious and obsessive.

J Roberts left an annotation ()

Hard though it is to believe, the chances of the PHSO upholding a complaint against the DWP are even smaller:

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

Enquiries received 1,553
Complaints assessed 191
Complaints resolved through intervention 2
Complaints accepted for investigation 30
Investigations fully upheld 0
Investigations partly upheld 4
Investigation NOT upheld 21
Investigations discontinued 5

The BBC is currently airing a series on the treatment of subpostmasters wrongly accused of theft by the Post Office. No matter what they said, they were not believed. Innocent people jailed and bankrupted:

https://www.bbc.co.uk/programmes/m000jmmx

Sadly, the truth stays hidden all too often.

Judgment: Neutral Citation Number:[2019] EWHC 3408(QB):

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

M Boyce left an annotation ()

Zero fully upheld from the DWP. That speaks for itself.

I am considering whether to appeal EA/2019/0334 above. I can't afford any legal advice, but any thoughts on the following point of appeal would be appreciated:

The ICO asked the Tribunal for a General Stay on ALL PROCEEDINGS form 1 April 2020 and then extended until the 27 May 2020 due to Covid19. The Tribunal have informed me that my hearing for the above case was held on 12 May 2020. No Directions were issued temporarily lifting the Stay. The Tribunal have so far not been able to tell me whether the above hearing was legal or not - and therefore appealable or not.

Any thoughts anyone?

J Roberts left an annotation ()

Nothing startling or incisive, I'm afraid.

I think it would be risky to rely on the lack of confirmation that the hearing was legal to delay lodging an appeal (not that I have any knowledge in this field). The potential hurdle of having to justify a late appeal could be added to your plight.

Some links:

Directions for a General Stay:

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

“It is directed that:

1. With immediate effect, ALL PROCEEDINGS under section 48 of the Data Protection Act 1998, section 162 of the Data Protection Act 2018 and section 57 of the Freedom of Information Act 2000 (including proceedings under that section as modified under regulation 18 of the Environmental Information Regulations 2004) shall be STAYED for a period of 28 days from the date of these Directions and ALL TIME LIMITS in any new and current proceedings are EXTENDED by the same period.

For the avoidance of doubt, this direction is subject to and does not affect any Directions in relation to specified proceedings made by the Tribunal on or after 1 April 2020.”

GRC guidance:

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

"Fast Track Protocol”:

“7. The default position is that all cases will be listed for determination by a Judge alone.”

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

J Roberts left an annotation ()

It may be that the Judge fetishized the word 'sham'. A fine legal mind could see meaning not intended by ordinary complainants. Jacobs J in GREEN V SECRETARY OF STATE FOR WORK AND PENSIONS AND ADAMS (INTERESTS IN TRUSTS AND ABILITY TO CONTROL ASSETS)[2018]UKUT377(AAC) draws on the wisdom of Diplock LJ to assist in meaning of the word 'sham':

"38. As regards the contention of the plaintiff that the transactions between himself, Auto Finance and the defendants were a ‘sham,’ it is, I think, necessary to consider what, if any, legal concept is involved in the use of this popular and pejorative word."

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

M Boyce left an annotation ()

Thanks J Roberts. You always make some interesting points.

The legal definition of sham as above:

'...legal rights and obligations different from the actual legal rights and obligations ..'

The dictionary definition of a sham:

'A thing that is not what it is purported to be.'

Both apply to the PHSO review process.

The fact remains that the review process is both not legally allowed for and is just a partial re-opening of a final report. It is also in the judges own words, a muddle and needs sorting out. The PHSO received legal advice in 2015/16 that told them that they could not legally re-open final reports. They then decided to partially re-open final reports and call this a review - a voila - an attempt to circumvent the law.

I know exactly what a review involves because I had one. Notably the judge in appeal EA/2019/0334 chose not to look at that review - the most crucial document in the entire bundle of evidence. How can a judge decide whether my dissatisfaction with the review process is not objectively justified if they have not seen the evidence?

J Roberts left an annotation ()

'How can a judge decide whether my dissatisfaction with the review process is not objectively justified if they have not seen the evidence?'

Had the Judge looked at your review, he might have realized how feeble the word 'muddle' is.

A requester used the word 'sham' in a comment dated 10 December 2016 relating to the Local Government and Care Ombudsman:

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

Much of what he says is reflected in numerous comments by others on WDTK with regard to other regulatory bodies.

J Roberts left an annotation ()

Correction to comment above:

"Much of what he says is reflected in numerous comments by others on WDTK with regard to other regulatory bodies."

Should read:

"Much of what he says is reflected in numerous comments by others on WDTK with regard to other ombudsmen and regulatory bodies."

J Roberts left an annotation ()

I recently read a FTT decision that triggered the word 'sham' in my mind.

The appellant's appeal was 'allowed'. The Second Respondent was Sandwell Metropolitan Borough Council:

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

Although the Appeal was allowed, there was a twist.

“133. The appeal is accordingly allowed, as the Commissioner’s Decision Notice was not in accordance with the law. We, however, uphold the exemption in respect of the requested information on two alternative bases, and accordingly substitute a Decision Notice in those terms. Our decision is unanimous.”

A fine legal mind might be puzzled by the grumbles of an appellant in a similar situation, but a member of the public relying on a dictionary might feel entitled to grumble.

An 'allowed' appeal can have very broad meaning.

M Boyce left an annotation ()

An appeal is only successful to an appellant if that appellant gets what they want from the appeal: justice.

M Boyce left an annotation ()

https://www.theregister.com/2020/04/08/i...

And then there is the issue of judges doing hearings without apparently obtaining a Direction to enable the temporary lifting of the General Stay - as in my case. I have repeatedly asked the Tribunal to explain what is going on here, but to no avail so far.

M Boyce left an annotation ()

The Commissioner stated the following:

'Further, with the Commissioner's Office closure, it is not presently possible to provide paper bundles therefore at present we are UNABLE TO PROGRESS ANY APPEALS IN READINESS FOR HEARINGS.'

This is all incorrect.

The ICO was never closed during the General Stay. They undoubtedly had a reduced number of staff and some of those staff may have been working from home, but the organisation was NEVER closed.

One of my cases, EA/2020/0134, was progressed as the ICO sent the Tribunal a number of documents and communications with regard to this case.

The ICO parked cases they found 'troublesome' and 'fast-tracked' others.

In my case this had the effect of attempting to pull the rug from under my feet by parking the most crucial appeal, EA/2019/0032, whilst simultaneously fast-tracking appeal EA/2019/0334 in order to undermine EA/2019/0032. Clever, but not clever enough.

J Roberts left an annotation ()

Fresh criticism of the FTT Chamber President. It's another bullet to the knee:

The FTT said the Commissioner was responsible for enforcement and the Commissioner said the opposite. The Commissioner's view prevailed. This UT case shows how the FTT can act as a barrier to justice. Something was struck out when it shouldn't have been:

“38. It was, though, wrong to strike out the part of the proceedings relating to his application to certify an offence of contempt, because it had jurisdiction over that issue. To that extent, the tribunal’s decision was in error of law and is set aside. The tribunal will now deal with that issue.”

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

Information Commissioner v Moss and the Royal Borough of Kingston upon Thames[2020] UKUT 174 (AAC)

On another issue, one related to a comment I made on 29 August 2019 on the following thread:

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

Judge Jacobs in Moss clarifies the meaning of 'enforcement':

“1. This case concerns the enforcement of decisions made under the Freedom of Information Act 2000 (FOIA, from now on) by the First-tier Tribunal. I refer to enforcement, because that is the word that is used in FOIA and has been used by the Information Commissioner, the First-tier Tribunal, and the parties in this case. In fact, there is no power to force a public authority to comply with its duty. What there is, is a power to punish for not doing so, although that power may operate as an incentive to comply. That is what is meant by enforcement.”

M Boyce left an annotation ()

I have now made a formal application for Appeal Decision EA/2019/0334 to be set aside. I hope to here from the Chamber President within the next week or so.

M Boyce left an annotation ()

Whether you get justice in this country seems to depend not on what you say, but on who you are. If you are a 22 year old footballer you get justice, but if you are not influential or famous you probably won't. A footballer campaigns for free school meals for poor kids and gets results (and good on him), but I and others on this site campaign for much needed reform of the PHSO and we are summarily and unfairly slapped down as vexatious. Perhaps we should start a football team and then we would be praised instead of being lambasted and ignored.

J Roberts left an annotation ()

I heard a woman making the same point on the wireless. She had written to her MP about the issue of children going hungry - letter ignored. It is good, however, to see the power of celebrity achieving something much needed.

Something else from the Moss decision which piqued my interest:

"The GRC refused Mr Moss permission to appeal against the decision. There is some indication in the GRC’s file that Mr Moss had made an application directly to the Upper Tribunal Administrative Appeals Chamber (‘AAC’) for permission to appeal (which he is able to do). As the GRC and the AAC are separate bodies, the GRC does not have (and does not need to have) full details about the progress of that appeal."

It reminded me of this:

"16. The Chamber President’s second ground* related to an application to the Upper Tribunal for permission to appeal to the Upper Tribunal against an interlocutory ruling earlier in this case. This is Upper Tribunal case GIA/0306/2019, which I have mentioned already. Dr Kirkham had asked the Administrative Appeals Chamber not to disclose to the First-tier Tribunal that he was applying for permission to appeal."

* for striking out the proceedings

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

Kirkham v Information Commissioner and UK Research and Innovation (strike out and recusal)[2020] UKUT 93(AAC)

phsothefacts Pressure Group left an annotation ()

Is Dr Kirkham Richard Kirkham?

J Roberts left an annotation ()

Same initial, but a different person:

Dr Reuben Kirkham v Information Commissioner (GIA)[2019] UKUT 381(AAC):

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

Here is his paper entitled 'How long is a piece of string? the appropriateness of search time as a measure of ‘burden’ in access to information regimes':

https://research.monash.edu/en/publicati...

"Abstract

Access to Information regimes are under unremitting challenge from state actors. This article is the first to directly explore the ‘cost limit’ often included in Access to Information regimes, where requests can be refused by a Public Authority on the basis of an estimate that it would take too long to locate and extract the requested information. The validity of such estimates is particularly important in light of electronic information systems where search times are dependant upon technological expertise. This article presents a qualitative study of decisions made by the United Kingdom's Information Commissioner, where decision notices concerning the ‘cost limit’ are examined to identify technological errors. These technological errors were found to arise from specific practices of the Commissioner in 40% of cases where an estimate of the Public Authority was accepted. The author demonstrates that the concept of estimating the time taken to find information from an electronic information system is an objectively inappropriate means for estimating the burden placed on a Public Authority."

Two public authorities could store similar information in different ways. You could get the information from one, but the other could tell you it's too costly to get it. Perfectly OK, apparently; its just the way their system works!

phsothefacts Pressure Group left an annotation ()

Thank you. It's all a sham really isn't it. Accountability theatre.

M Boyce left an annotation ()

Today I received a response to my application for the above decision to be set aside. Unsurprisingly the application for set aside was refused. The same judge made the decision. In paragraph 4 it states the following:

'...It is right that I was not able to locate the outcome of the review in the papers and that I have not seen it. If it is available in the papers I am surprised that Mr Boyce has not now provided me with the relevant page reference but in any event, I am quite satisfied there was no need for me to see the details of the outcome of the review to decide the case. The review was part of the background to the case and the detail of its outcome did not bear on my decision that the FOIA request was vexatious....'

Yes folks that is exactly what the judge said. Apparently, Tribunals don't need to see the evidence of the appellant because the evidence of the PHSO and the ICO are all that matter. The judge says he has decided the crucial evidence of the review is merely 'background', but how could he know this if he has not seen this evidence? It is much, much more than mere background: it is central to the entire case.

The judge has displayed an astonishing disregard for crucial material evidence - I know it is crucial because I have seen it, and he hasn't.

I will now appeal this above decision to the UTT.

It sets an extremely dangerous precedent when judges openly and repeatedly declare that crucial evidence can just be ignored. It will set a much more dangerous precedent if the Upper-tier Tribunal agree.

We will see.

M Boyce left an annotation ()

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

The above decision was published on the Information Tribunal website today, less than 28 days since the decision was promulgated and sent to me. It is established good practice not to publish before the expiry of the 28 day deadline for appeal of a decision. I have already appealed it on the error of law that significant material evidence was ignored - the PHSO internal review - which is central to both this appeal and appeal EA/2019/0032.

M Boyce left an annotation ()

file:///C:/Users/Paul/Downloads/016%20070720%20PTA%20RULING%20%20(3).pdf

And now the above ruling.

The judge should have looked at all the important evidence (which he later dismissed as irrelevant) BEFORE he made his decision on 28 May 2020, not later on appeal. The PHSO review was central and not irrelevant. The whole case revolves around it, because that is where my dissatisfaction with the review process largely stems.

It is a clear error of law for a tribunal to fail to have regard to material evidence.

I will be posting my application to appeal directly to the UTT by the weekend.

M Boyce left an annotation ()

For some reason the above ruling has not successfully copied and pasted?

If anyone wants to know exactly what is says, let me know and I will type the contents here.

J Roberts left an annotation ()

"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."

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

M Boyce left an annotation ()

Thanks J Roberts, this is really useful.

So the ICO now claim that SOME authorities WRONGLY argue that 'the factors in favour of disclosure need to be exceptional for the public interest to favour disclosure.'

SOME authorities, but not themselves?

The ICO have gone even further, by claiming in my case and in at least six other cases over the past few years regarding section 42 FOIA, that the factors in favour of disclosure need to be not only exceptional, but an order of magnitude beyond that: VERY EXCEPTIONAL. In other words contrive to change the statutory requisite of a qualified exemption into an absolute exemption.

Good old ICO, blaming others, whilst flagrantly breaking the law itself - and still maintaining their right (and the right of no else) presently to the First-tier Tribunal in my case EA/2019/0032 that the factors for disclosure need to be VERY EXCEPTIONAL.

I see that the ICO have still found in favour of maintaining the exemption in the above case, so although they CLAIM to regard section 42 as qualified, they are only now saying this to try and cover their legal back - they still ACT to make it absolute whatever they now say.

Notice as well that the ICO are procrastinating - breaking the law again - with my FOIA request to them about this very issue on WDTK.

M Boyce left an annotation ()

The ICO are now claiming that it is only 'other authorities' that are using the extreme exceptionality rule to section 42 disclosure - and never the inerrant ICO.

Which other authorities have made such a claim?

Oh yes, that's right, none of them, because the extreme exceptionality law breaking rule is one that only the ICO have concocted and used themselves.

Not only are the ICO law-breakers, but they are hypocrites to boot. They now pretend to admonish other authorities for doing that which they routinely and unashamedly do themselves.

The ICO is a government quango with enormous power, a power that enables it to impose fines of literally hundreds of millions of pounds, and yet it has now shown beyond any doubt that it is not fit to wield a tickling stick, let alone the power to fine individuals and organizations more than a footballer gets paid in an entire day.

We should be able to trust the regulator of the FOIA. That trust has been well and truly shattered, and without trust the ICO is an enormous waste of time and money.

J Roberts left an annotation ()

'The ICO are now claiming that it is only 'other authorities' that are using the extreme exceptionality rule to section 42 disclosure - and never the inerrant ICO.'

There is a bit of a 'nothing to do with us' in the ICO response.

Given the communication that occurs between the ICO and public authorities prior to a decision notice being issued, it appears strange that the ICO did not disabuse the purportedly errant public authorities of their incorrect understanding.

M Boyce left an annotation ()

To be honest I think it's more of a couldn't care less attitude. If it goes to the FTT they regard all cases as already in the bag, and it's only the tax-payers money they are wasting.

Just like the PHSO, the ICO employs caseworkers of widely varying understanding of their work and remit. Some caseworkers are diligent and know what they are doing, and many don't. They should all be singing from the same hymn sheet in terms of an understanding and an application of the law, and they're clearly not. Some ICO caseworkers regard section 42 FOIA as an absolute exemption and some regard it as a qualified exemption.

The problem is that even when a caseworker wrongly argues that section 42 is an absolute exemption, this is NEVER EVER corrected by the ICO lawyers that then deal with the case at Tribunal. A caseworkers decision, however flawed, is just hammered through the tribunal process with the full knowledge that even if the Tribunal say the ICO has wrongly applied the law with regard to section 42, such law-breaking is never actually addressed. So far the FTT have never stepped beyond calling this law-breaking by the ICO as anything other than 'not the correct rule'. The ICO gets away with breaking the law every time. Is this justice?

Why is the ICO ALWAYS above the law?

M Boyce left an annotation ()

In the above PACAC Report they discuss in paragraph 44 the urgent need to update the antiquated and not fit for purpose PHSO legislation.

Notice how they both completely ignore the illegal PHSO review process. Not a single mention.

Judge Shanks in the above Decision has now also described this review process as 'in a muddle and needs sorting out'.

So why haven't the PHSO or PACAC mentioned this illegal and muddled review process, which has the practical effect of denying complainants any chance of justice?

J Roberts left an annotation ()

'Notice how they both completely ignore the illegal PHSO review process. Not a single mention.'

A lot of important matters escape the attention they deserve by government, unfortunately. 'Blind-eye knowledge' is widespread. Nelson, it is said, raised a telescope to his blind eye at Copenhagen and said he could not see any order to retreat!

The Review Process:

https://phsothetruestory.com/the-review-...

J Roberts left an annotation ()

Rob Behrens, however, has a good eye for spotting failings in review elsewhere, as evidenced in his letter of 17 July 2020 to Michael Gove:

'What I have seen in the case that I have appended to this letter only reinforces the need for a clearer, more coherent approach by Government in relation to inquiries and the other types of review that can be used to investigate systemic and historic failings. I hope the MoJ’s learning from the impact they had on the complainant and MP in this case is useful to your officials as they develop the new guidance.'

https://www.ombudsman.org.uk/sites/defau...

M Boyce left an annotation ()

Yes it is ridiculous that Rob Behrens calls on government departments to undertake CLEARER inquiries and reviews when the PHSO's own inquiries and reviews are grossly unclear, confused and often not legally allowed.

M Boyce left an annotation ()

I'm sure the PHSO published their 2019-20 Annual Report this morning. When I went back to it later it had disappeared from the PHSO website?

Is this clear or unclear to the public?

M Boyce left an annotation ()

https://www.ombudsman.org.uk/sites/defau...

The Annual Report has reappeared again.

Only a matter of weeks ago both the PHSO and PACAC agreed on the urgent need for an update of the PHSO's not fit for purpose legislation.

So where is this mentioned in the Annual Report? That right, it isn't mentioned at all.

Hmm, so much for their declarations about the urgent need for Ombudsman legislative reform. Instead just a note about how the PHSO will continue along the same old path for the next decade.

Now that's something to look forward to!