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Posted by: John Brace | 21st April 2014

ICO decides soon whether my Freedom of Information request was vexatious or Wirral Council was just taking the mickey

ICO decides soon whether my Freedom of Information request was vexatious or Wirral Council was just taking the mickey

                                
Last year I made a Freedom of Information Act request through the whatdotheyknow.com website for minutes of various panels, statutory committees, advisory committees and working parties. All the minutes were of groups that a councillor (or councillors) sit on, but weren’t public meetings and not routinely published by Wirral Council.

The request was made on 29th March 2013. By the 29th April 2013 I had not received a reply, so I requested an internal review. On the 30th April 2013 Wirral Council responded stating that the request would be refused on the basis of exemption 12 (exemption where cost of compliance exceeds appropriate limit) which to summarise is where a request would take longer than 18.5 hours of staff time to provide.

Wirral Council did state they would provide minutes of the Members Equipment Steering Group (they had action notes on these since the 17th July 2012) which deal with equipment for councillors to do their role such as laptops, iPads etc and minutes of the Safeguarding Reference Group. However now almost a year later they haven’t. The response also pointed out that there weren’t minutes taken of Independent Remuneration Panel meetings (which make recommendation on allowances for councillors) but that the Independent Remuneration Panel produced reports which had already been published on Wirral Council’s website.

On the same day I made it crystal clear that I just wanted minutes of the previous meetings of these groups, not all minutes of their meetings since these groups had been started (which is how Wirral Council had interpreted this request). The internal review response on the 30th July 2013 stated “The groups you mentioned are not all served by committee services nor are they groups on which the Council is the sole interested party; nor are they all groups which the Council chairs and an inquiry would have to be made to a significant number of persons and locations.” The internal review refused the request on the basis of a s.14 exemption (vexatious or repeated request). The internal review went on to state “It is clear that many of the panels you mention will be dealing with highly sensitive personal data in particular and without limitation no.s 1-4 inclusive, 8, 9, 11, 16, 23 and 26. Officer time in considering those considering the exemptions and redacting, consulting with third parties (for example the independent chairperson of the Adoption panel, representatives of other bodies on the committee) would in view of the Reviewing Officer mean that the request should have been refused under s.14. I was then at the stage (over four months after having made the request) of being at the stage where I could make an appeal to the Information Commissioner’s Office.

It is at this point that I will point to a number of already decided cases that have a bearing on how Wirral Council should have handled this request. The Chief Constable of Yorkshire Police v The Information Commissioner (EA/2009/0029) was a case involving a refusal on s.12 grounds (exemption where cost of compliance exceeds appropriate limit). In that case, which was an Information Tribunal case this was part of the decision “37. For all these reasons, we find a public authority cannot include the time cost of redaction when estimating its costs under regulation 4(3)(d).”

Regulation 4 of The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 state that only the following four things can be taken into account when determining whether a request will take longer than 18.5 hours:

“the costs it reasonably expects to incur in relation to the request in

(a)determining whether it holds the information,
(b)locating the information, or a document which may contain the information,
(c)retrieving the information, or a document which may contain the information, and
(d)extracting the information from a document containing it.

In other words the activities that Wirral Council mention such as “officer time considering those exemptions and redacting” and “consulting with third parties” don’t fall within these four activities and don’t count towards the 18.5 hour limit.

Another case in the first-tier tribunal, Roger Conway v The Information Commissioner (EA/2011/0224) dealt with how the s.14 (vexatious or repeated requests) exemption can be used. The judgement in this case states at paragraph 17 (there’s a slight typographical error as 0 should read 10):

“17. In respect of paragraph 0 above, whether the request creates a “strain on resources”, that is not relevant to the question of whether it is vexatious. If the Council wished to argue that they ought not to be required to comply with the request on this basis, then it ought to have relied on section 12 FOIA. It did not do so. In any event, as discussed at paragraph 10 above, the Commissioner considered whether the request would create a significant burden (strain) on the Council and concluded that there was insufficient evidence to support this factor.”

In other words, Wirral Council’s arguments when they refused it as a vexatious request that it would create the sort of “strain on resources” referred to in Roger Conway v The Information Commissioner (EA/2011/0224) wasn’t relevant to the question of whether it’s vexatious and was the basis of Wirral Council’s argument that it was. Roger Conway v The Information Commissioner (EA/2011/0224) states that if a public authority wants to refuse such a Freedom of Information Act request then it should rely on a section 12 exemption (exemption where cost of compliance exceeds appropriate limit). However if Wirral Council has to rely on a s.12 exemption in this case then Regulation 4 of the The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 and Chief Constable of Yorkshire Police v The Information Commissioner (EA/2009/0029) state that it can’t count activities such as “officer time considering those exemptions and redacting” and “consulting with third parties” towards the 18.5 hour limit.

So I appealed Wirral Council’s decision to the Information Commissioner’s Office. I received a response from the Information Commissioner’s Office last week that it had written to Wirral Council about this request twice, but had not yet received a reply. The Information Commissioner’s Office released the copies of the letters to me it has sent to Wirral Council and not received a reply to but with the Wirral Council officer’s name redacted. Interestingly the Information Commissioner’s Office have decided that some of the request falls under the Environmental Information Regulations 2004, which unlike the Freedom of Information Act 2000 have a presumption in favour of disclosure.

PROTECT

 

15th August 2013

 

Case Reference Number FS50509081

 

Dear [redacted council officer name],

Freedom of Information Act 2000 (‘the Act’)
Complaint from John Brace
Information request made 29 March 2013

The Information Commissioner has received a complaint about the handling of the above request.

We have carried out an initial assessment of this case and consider it eligible for formal consideration under s50 of the Act.

The case will be allocated to a case officer who will contact you with further details of the complaint.

We emphasise that although we have assessed the complaint as being eligible for the Information Commissioner to decide whether a public authority has dealt with a request for information in accordance with Part I of the Act, no specific decision has been made as to the individual merits of the complaint at this time.

What actions may be required at this stage

Where information has been withheld because you (the public authority) have applied one of the exemptions in Part 2 of the Act, the case officer will need to have a copy of the information to judge whether or not any exemptions have been properly applied. We would also appreciate, where you are able, for you to be specific about which exemptions apply to each part of the information. At this stage we only ask that you prepare this information: please do not send it to us until it is requested by the case officer.

Providing information to the ICO

Finally, you should be aware that the Information Commissioner often receives requests for copies of the letters we send and receive when dealing with casework. Not only are we obliged to deal with these in accordance with the access provisions of the Data Protection Act 1998 (DPA) and the Freedom of Information Act 2000 (FOIA), it is in the public interest that we are open, transparent and accountable for the work that we do.

However, whilst we want to disclose as much information as we reasonably can, there will be occasions where full disclosure would be wrong. It is also important that the disclosures we make do not undermine the confidence and trust in the Commissioner of those who correspond with him.

I would be grateful if, at the appropriate time, you would indicate whether any of the information you provide in connection with this matter is confidential, or for any other reason should not be disclosed to anyone who requests it. I should make clear that simply preferring that the information is withheld may not be enough to prevent disclosure. You should have a good reason why this information should not be disclosed to anyone else and explain this to us clearly and fully.

If you need to contact us about any aspect of this complaint please call our helpline on 0303 123 1113, or 01625 545745 if you would prefer not to call an ‘03’ number, being sure to quote the reference number at the top of this letter.

Yours sincerely,

Jenny Sanders
Sent on behalf of
Andrew White
Group Manager
Complaints Resolution
Information Commissioner’s Office

=======================================================================================================

PROTECT

 

10 February 2014

 

Case Reference Number FS50509081

 

Dear [redacted council officer name]

 

Please find attached a letter 1/3 – regarding a complaint by Mr John Brace to the ICO.

Yours sincerely

Daniel Perry
Case Officer – Complaints Resolution
Direct Dial: 01625 545 214

=======================================================================================================

[redacted council officer name]

Wirral Metropolitan Borough Council
Town Hall
Brighton Street
Wallasey
Merseyside
CH44 8ED

 

10 February 2014

 

Case reference number FS50509081

 

Dear [redacted council officer name]

 

Freedom of Information Act 2000 (FOIA)

Environmental Information Regulations 2004 (EIR)

Complainant: Mr John Brace

Your Ref: None given to complainant, but subject matter is listed as ‘Minutes of previous meetings of 26 panels

 

We wrote to you previously to let you know that we have accepted a complaint from Mr Brace (“the complainant”). The complaint concerns the refusal to comply with a request for information under section 14(1) of the Freedom of Information Act 2000 (“the FOIA”).

 

Having reviewed the nature of the complainant’s request for information, we will need to consider this case under the Environmental Information Regulations 2004 (“the EIR”), as well as the FOIA. The EIR provides the public with a right to information held by authorities that relates to the environment. The EIR apply in this case due to parts 20-22 of the request. Your obligations as a public authority are similar to those under the FOIA.

 

I can see that [redacted council officer name] contacted us on 16 August 2013 to ask for the CRM number, apologies that she did not receive a response. Cases are held in a queue until they are allocated to a case officer. From what I can see on the documents provided by Mr Brace (as detailed below) there is no CRM number. However the correspondence can be viewed at:

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

 

 

ICO’s approach

 

On receipt of a complaint under the FOIA and EIR, the Information Commissioner (“the Commissioner”) will give a public authority one opportunity to justify its position to him before coming to a conclusion. Please consider the guide for public authorities on the Commissioner’s website for more information about how we handle complaints:

http://www.ico.gov.uk/for_organisations/freedom_of_information/guide.aspx

 

The request

 

On 29 March 2013 the complainant made the following request for information:

 

Please could you provide minutes of the previous meetings of the
following committees. If minutes whether in draft form or not are
not available of the previous meeting, please provide the minutes
of the meeting directly before. I have given each of the committees
a number in order which can be used in future communications to
avoid misunderstandings.

If minutes for any of these committees are not available in
electronic form and to provide them in digital form would exceed
the 18.5 hours rule then I am happy to collect paper copies from
Wallasey Town Hall instead.

1. Complaints Panel (School Curriculum and Related Matters)
2. Education Staff Panel
3. Headteacher Appointments Panel
4. School Appeals Panel
5. Standing Advisory Committee on Religious Education (SACRE)
6. Wirral Schools Forum (Funding Consultative Group)
7. School Admissions Forum
8. Adoption / Fostering Panels
9. Housing Review Panel
10. Unified Waiting List Management Advisory Board
11. Discharge from Guardianship by Wirral Council under the Mental
Health Act 1983 Panel
12. Independent Remuneration Panel
13. Youth and Play Service Advisory Committee
14. Corporate Parenting Group (formerly known as Virtual School
Governing Body)
15. Headteachers and Teachers JCC
16. SEN Advisory Committee
17. Wirral Schools’ Music Service Consultative Committee
18. Members’ Training Steering Group
19. Members’ Equipment Steering Group
20. Birkenhead Park Advisory Committee
21. Hilbre Island Nature Reserve Management Committee
22. Wirral Climate Change Group
23. Anti-Social Behaviour Partnership Body
24. Birkenhead Town Centre Consultative Group
25. Wirral Trade Centre Working Party
26. Safeguarding Reference Group

 

You responded on 30 April 2013 and refused the request under section 12.

 

The complainant then requested an internal review on 30 April 2013, which you provided on 30 July 2013. You revised your position and refused the request under section 14(1).

 

 

Scope of the case

 

The complainant contacted the Information Commissioner’s Office (“the ICO”) on 14 August 2013 to contest the council’s refusal.

The focus of my investigation will be to determine whether the council handled the request in accordance with the FOIA and EIR.

Specifically, I will look at whether the council is entitled to rely on section 14(1) of the FOIA and regulation 12(4)(b) as a basis for not providing a response to the request for information.

 

What you need to do now

 

Where possible the Commissioner prefers complaints to be resolved by informal means, and we ask both parties to be open to compromise. It is also your responsibility to satisfy the ICO that you have complied with the law. The ICO’s website has guidance which you should refer to in order to check whether your original response to the information request was appropriate.

 

This is your opportunity to finalise your position with the ICO. With this in mind, you should revisit the request. After looking at our guidance, and in light of the passage of time, you may decide to reverse or amend your position. If you do, please notify the complainant and me within the timeframe specified at the end of this letter. This may enable us to close this case informally without the need for a decision notice.

 

In any event, we need the following information from you to reach a decision.

 

Section 14(1) of the FOIA – Vexatious requests, and regulation 12(4)(b) of the EIR – manifestly unreasonable

 

In determining whether a request is vexatious, the ICO believes that the key question which public authorities need to consider is whether complying with the request is likely to cause a disproportionate or unjustified level of disruption, irritation or distress. Where this is not clear, public authorities should weigh the impact on the authority and balance this against the purpose and value of the request. Where relevant, public authorities will need to take into account wider factors such as the background and history of the request.

 

The ICO has published guidance on applying section 14(1) of FOIA which includes information on how to apply to this balancing exercise. Our approach to manifestly unreasonable requests under the EIR is very similar. You are strongly advised to review this guidance before responding to this letter.

 

As this guidance explains, when determining whether section 14(1) or regulation 12(4)(b) has been applied correctly the ICO will primarily look for evidence that the request would have an unjustified or disproportionate effect on the public authority.

 

Therefore, in light of this please explain why in the circumstances of this case the council relied on section 14(1) and regulation 12(4)(b) to refuse the request. Your response should include:

 

  • Details of the detrimental impact of complying with the request;
  • Why this impact would be unjustified or disproportionate in relation to the request itself and its inherent purpose or value;
  • And, if relevant, details of any wider context and history to the request if the council believes that this background supports its application of section 14(1) and regulation 12(4)(b). Please provide any relevant documentary evidence background evidence to support such a claim.

 

We strongly recommend that your response is guided by recent decision notices, our guidance and our lines to take, which demonstrate the Commissioner’s approach to the exemptions and procedural sections of the FOIA and EIR. These can be found on our website:

 

 

 

 

Having revisited the request, you may decide to apply a new exemption. We will consider new exemptions but it is your responsibility to tell the complainant why the new exemption applies and to provide us now with your full submissions.

 

For the avoidance of doubt, you should now do the following.

 

  • Consider whether to change your response to the information request, and let us know the outcome.
  • Send us your full and final arguments as to why you think section 14(1) and regulation 12(4)(b) applies.

 

To contact us

 

Please provide your response within 20 working days of the date of this letter, that is by 10 March 2014,ensuring that you fully set out your final position in relation to this request.

 

You can contact me at casework@ico.org.uk. Please ensure that you reply directly to this email address without changing any of the details in the subject box. This will ensure that the correspondence is allocated immediately to the correct case.

 

Yours sincerely

 

 

Daniel Perry

Case Officer – Complaints Resolution

Direct Dial: 01625 545 214

 

 

You should be aware that the Information Commissioner often receives requests for copies of the letters we send and receive when dealing with complaints. Please indicate whether any of the information you provide in connection with this matter is confidential, or for any other reason should not be disclosed to anyone who requests it. You should provide a good reason why this information should not be disclosed to anyone else and explain this to us clearly and fully.

 
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Responses

  1. As far as “vexatious” requests go John, I’ve had Surjit Tour tucking into two helpings of humble pie, and I’m confident you’ll be doing the same very soon

    • After you “vexatious” requests were successfully appealed to ICO and mine was, I haven’t noticed Wirral Council use it on any request since made through the whatdotheyknow.com website.

      Interestingly Wirral Council didn’t assign a CRM number to my request, but asked ICO what the CRM number was! Their new favourite exemption to apply to my requests is s. 36 (prejudice to the effective conduct of public affairs which can only be applied by the two “qualified persons” at Wirral Council who are Surjit Tour and for internal reviews Graham Burgess.

      Section 36 relies on the “reasonable opinion” of these two as to whether it applies and is very broadly written. I haven’t yet appealed a s.36 exemption to ICO, there have been some successful appeals of s.36 exemptions, but those relied on things like a person who wasn’t a qualified person making the decision rather than the “reasonable opinion” being wrong. How do you prove an opinion wrong anyway other than by attacking the facts on which it is based or comparing it to what reasonable opinion meant in other cases?

  2. i.e. making him do the same very soon !

  3. Inspector, nay Chief Inspector, Brace, FOI squad

    Your desire to follow labrynthine passages through the law would serve well in the Police. I know of several top , local, chess players who share their forensic skills between Police work , and chess. Your skills match theirs.

    an alternative career beckons or you could take up chess!

    • Well there’s an update to this story from when I wrote it. After ICO threatened Wirral Council with an information notice they revised their stance (and after months of unanswered ICO correspondence sent a reply).

      As ever with FOI it’s complicated. However they’ve dropped the claim they made at internal review that they feel it’s vexatious and want to “replace” this internal review with a different one.

      Taking the mickey somewhat Wirral Council then say as it’s a revised response I’m entitled to a further internal review. ICO say it’s the third internal review (Wirral Council seem to be forever changing their mind!) and I think (from the tone of ICO’s communications to me) that Wirral Council is well versed in the art of delaying tactics.

      My familiarity with legal procedure has helped me in both reporting of and dealing with legal cases in the past. To me the judiciary is just another branch of government. However it’s civil law I have experience in rather than criminal. It’s much easier to win cases “on the balance of probabilities” than “beyond a reasonable doubt”.

      My last case was a civil “strict liability” case so I just had to prove someone hadn’t done something (which because they hadn’t they then ended up with a court order compelling them to do the thing that they hadn’t done).

      The truth is those, both in chess, legal cases and FOI it’s about thinking a few steps ahead and always saving what would be termed in bridge a “trump card”.


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