I received a 2 page letter yesterday (4th September 2017) sent by Second Class post dated 1st September 2017 from ICO (the regulator).
In summary the letter states that the Information Commissioner’s solicitors are now dealing with the matter as Wirral Metropolitan Borough Council have appealed decision notice FER0672223 to the First-tier Tribunal (Information Rights).
As Wirral Council are the Appellant, the Information Commissioner will be First Respondent.
ICO’s letter also states that due to this the Commissioner won’t be keeping me informed about further developments on the appeal.
Although I’m the person who made the original information request, as I’m not appealing the decision notice, I’m not at the point of writing this blog post a party to the matter.
From past experience it could take ~7 months before a decision is reached.
This is a new situation I find myself in as it’s the first time a public authority has appealed to the First-tier Tribunal a decision notice relating to an information request I’ve made!
A copy of ICO’s two page letter is below, the First-tier Tribunal case reference number is EA/2017/0191.
Will a planning appeal over the Saughall Massie fire station fail due to incorrect legal advice to councillors?
Originally this bundle was going to be published in a different way, but instead it will be published as an exclusive in serial form on this blog.
I’d better start by declaring an interest as the Appellant in First-tier Tribunal case EA/2016/0054, which is about an Environmental Information Regulations 2004 request for the estimates of capital costs involving a new fire station first at Greasby, then at Saughall Massie and the sale of fire stations at Upton and West Kirby.
Despite the bundle being 480 pages in total, there are hundreds of pages missing from it (such as the transcripts of the public meetings involved, communications between the 2nd Respondent (MFRA) and the 1st Respondent (ICO) etc).
What did Andrew Roberts answer to questions about the Headteachers’/Teachers’ Joint Consultative Committee at the First-tier Tribunal (Information Rights) hearing (EA/2016/0033)?
At the outset I will make four declarations of interests.
1) I am the Appellant in this case (EA/2016/0033).
2) My wife was my McKenzie Friend in case EA/2016/0033.
3) I made the original Freedom of Information request on the 29th March 2013.
4) I am referred to by name (Mr. Brace) in paragraphs 1, 4 and 5 of the witness statement of Andrew Roberts.
Hearing: EA/2016/0033
Court/Room: Tribunal Room 5, 3rd Floor
Address: 35 Vernon St, Liverpool, Merseyside L2 2BX
Date/time: 16th June 2016 10:15 am
First-tier Tribunal (Information Rights) (General Regulatory Chamber)
First-tier Tribunal Judge Mr. David Farrer QC
First-tier Tribunal Member Mr. Michael Hake
First-tier Tribunal Member Dr. Malcolm Clarke
Appellant: Mr John Brace
First Respondent: ICO (Information Commissioner’s Office)
Second Respondent: Wirral Metropolitan Borough Council
The below is an incomplete record written up from my handwritten notes made at the hearing. The below does not cover some of the sections when I am speaking due to the difficulties in taking notes as doing that you end up facing the paper you’re writing on.
First-tier Tribunal Judge Mr. David Farrer QC opened the hearing by explaining how he planned the hearing would happen.
There were some preliminary matters to be discussed at the start of the hearing.
Time of hearing for EA/2016/0033 changed from 10.00 am to 10.15 am
Liverpool Civil & Family Court, Vernon Street, Liverpool, L2 2BX (the venue for the upcoming First-Tier Tribunal case EA/2016/0033)
First a declaration of interest, as I am the Appellant in the First-Tier Tribunal (Information Rights) case EA/2016/0033. The two respondents are the Information Commissioner’s Office and Wirral Metropolitan Borough Council.
I received notification from the Tribunal yesterday that the time for this hearing has been changed. It has been altered by fifteen minutes.
The original date and time was:
10.00 am 16th June 2016
The new date and time is (I have underlined the change for emphasis):
10.15 am 16th June 2016
The venue remains unchanged and is still
3rd Floor (Tribunals Service),
Liverpool Civil and Family Court
35 Vernon Street
Liverpool
Merseyside
L2 2BX
As the matter is now sub judice, unfortunately for legal reasons I will have to turn comments off on this post.
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First-tier Tribunal (General Regulatory Chamber)
124. The General Regulatory Chamber hears a wide range of appeals on regulatory matters, for example charities, consumer credit, transport and appeals from decisions of the Information Commissioner. We do not currently charge fees for proceedings in this chamber, with the exception of appeals in relation to gambling licences. In these cases, the fee charged is based on the value of the licences that are in dispute. We are not proposing to change the fees for these proceedings.
125. In 2013–14 the estimated cost of the General Regulatory Chamber (including Gambling) was £1.6m. The fee income generated from Gambling proceedings (the only fee charging tribunal within the General Regulatory Chamber) was £11,600.
126. In the remaining jurisdictions within the General Regulatory Chamber, we have proposed one fee for an appeal decision on the papers and one fee for an oral hearing. Our proposal is to charge a fee of £100 to issue proceedings, which would entitle the claimant to a decision based on a review of the papers. The claimant may alternatively elect for an oral hearing, in which case a further fee of £500 would be payable. Based on current volumes, we estimate that this proposal would generate a cost recovery percentage of around 17% after remissions.
127. The fees will also apply to “reference” cases where cases are started in the first-tier Tribunal but have to be referred directly to the Upper Tribunal for a first instance hearing.
Questions
Question 14: Do you agree with the proposed fees for all proceedings in the General Regulatory Chamber: specifically £100 to start proceedings with a determination on the papers; and a further fee of £500 for a hearing? Please give reasons.
Question 15: Are there any proceedings in the General Regulatory Chamber that should be exempt from fees? Please give reasons.
I’d better explain a bit better what the above is about by explaining the process to making a FOI request.
You make a Freedom of Information Act request to a public body and if is turned down (whether in part or in full) you can ask the same public body for an internal review.
If at the internal review there is still information withheld and you feel that they shouldn’t have withheld the information you can appeal the internal review decision to the Information Commissioner’s Office.
If either the public body or the person making the FOI request disagree with the decision notice, they have 28 days to appeal the decision to the First Tier Tribunal (Information Rights) which is part of the General Regulatory Chamber.
Appeals can then be made of decisions of the First Tier Tribunal (Information Rights) on a point of law only to the Upper Tribunal.
The consultation is proposing that if someone (whether the public body or the person making the request) wishes to challenge an ICO decision notice by appealing it to the First Tier Tribunal (Information Rights) that there will be a charge of £100 if the decision is made on the papers and £500 if a hearing is required.
So what do readers think about this proposed change? Most of the appeals to ICO decision notices to the First Tier Tribunal (Information Rights) are by litigants in person, who unless they fall into one of the categories of people who don’t have to pay fees a fee of £100 or £500 may make them think twice before appealing a decision.
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