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Judicial Appointments

Ombudsman

&. Conduct

9th Floor
The Tower
102 Petty France
London
SW1H 9AJ
OX 152380 Westminster 8

PRIVATE AND CONFIDENTIAL

MrL~:'-t

T 020 3334 2900


E headofoffice@jaco.gsLgov.uk
www.judicialombudsman.gov.uk

Bye-mail
.' _~"'-~~_4'~~a~@gniail.com

30 January 2017

DearMr(

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YOUR REQUEST FOR INFORMATION


I am writing in response to your 2 December 2016 request for an Internal Review of Mr Critchfield's
decision in respect of your request for information.
Time taken to respond to your request
I am aware that Mr Critchfield apologised for the fact that it took longer than the twenty working
days specified in section 10 of the Freedom of Information Act 2000 to respond to your initial
request. I understand that my Office has similarly apologised for the time taken to respond to your
request. I endorse those apologies.
Your initial request and the response
You set out your request for information in your 29 October 2016 e-mail. In this you referred to my
conclusion in the Preliminary Investigation Report sent to you on 23 May 2016 that it was
surprising that three letters sent by an Advisory Committee did not reach you as they were
correctly addressed except for a minor error in the postcode and that such an error could not
constitute maladministration. You asked to be provided with:
i)

The identity of the Advisory Committee whose investigation was reviewed and described of
in Case Study 5 of my 2015/16 Annual Report.

il) Any other instances in which complainants similarly stated that they had not received
correspondence from an Advisory Committee, and which Advisory Committees were
concerned.
This is not your personal data and so the request was considered under the Freedom of
Information Act 2000. You are doubtless aware that section 1 of that Act creates a general
right whereby any person making a request for information to a public authority (which
includes this Office) are to be informed in writing by the public authority whether it holds the
information and, if so, to have that information communicated to them. There are a number of
exemptions to this general tight of access, including:

If

Section 12(1), which states that public authorities do not need to comply with a
request for information if the cost of doing so would exceed the appropriate limit.
Section 14, which states that public authorities do not need to comply with requests
for information

which are vexatious.

You were advised on 1 December 2016 that Mr Critchfield had decided that he would not
comply with your request as it was vexatious. He also advised that, even if the request was
not vexatious, he would not be able to comply with point ii) in your request as the cost of
doing so would be disproportionate. Your request for Internal Review set out why you
disagreed with Mr Critchfield's conclusion that your request was vexatious. It did not address
his secondary conclusion that, even if the overall request was not vexatious, my Office would
not be required to comply with part ii) of your request as the cost of complying would exceed
the statutory limit.
Section 14 of the Freedom of Information

Act 2000

In reviewing Mr Critchfield's response to your request for information I have considered a


number of pieces of guidance issued by the Information Commissioner's Office (ICO). In
particular I note that the ICO's guidance on section 14 of the Freedom of Information .Act
2000 suggests that there are a number of indicators which might cause public bodies to
conclude that a request for information was vexatious.
You suggested in your 2 December 2016 e-mail that this Office simply does not want to
disclose the information in question, suggesting that disclosure might raise questions about
the honesty of HM Courts and Courts and Tribunals Service staff. I understand that Mr
Critchfield's response to your request was based on his assessment of that request. There
are arrangements for considering allegations of dishonesty by HM Courts and Tribunals
Service staff and there is no indication in the papers I have seen to suggest that Mr
Critchfield's decision was influenced by the possibility that clisclosing the requested
information might demonstrate a pattern of dishonest behaviour by HM Courts and Service
staff. It is clear to me that his decision was simply based on his assessment of your request,
including the likely administrative burden entailed in complying.
In your request for an Internal Review you argued that Mr Critchfield had wrongly assumed that
your request was for evidence gathering for the purpose of justifying a review of a complaint with
view to altering the decision and also that the Office was misconceived in suggesting that the High
Court might be engaged because even if the time limit had not passed "it would be madness to
proceed in litigation where all the cards are stacked in favour of the public body". It is clear to me
that the matters in your complaint to me are closed, as are matters in respect of your complaint to
the Humberside Advisory Committee and that there was a clear finding by me that there was no
prospect of my finding maladministration by the Humberside Advisory Committee. I also appreciate
that only you can know why you requested the information. However, it is also clear to me that your
request for information relates to matters in your complaint to me and that you requested the
information Shortly after my Office advised, in response to an e-mail from fFaudwatch, that the
matter was closed. It was therefore reasonable for my Office to conclude that you were seeking to
use the Freedom of Information regime to reopen and prolong correspondence in respect of
matters that are closed. The suggestion in your Internal Review request that the information
requested might raise questions about the honesty of HM Courts and Tribuna!s Service confirms
that view.
Cl.

! do not accept

your suggestion that my Office has acted inappropriately in monitoring your other
requests for information. Your request for information was clearly submitted via the 'What do they
know" website and information about your requests (as ~~
.dt, the Real N_~
....ci and
fFaudwatch) is clearly and publically available. It is also relevant that the requests refer to matters
relevant to your Court case which ultimately led to your complaining to me. They are therefore
relevant in considering whether the request to me is vexatious.
I appreciate that the cost of disclosing the identity of the Advisory Committee referred to in Case
Study 5 would be significantly less than that resulting taking and subsequently reviewing the
decision that that request was vexatious - although that is not the case when considering the Hkely
2

cost of disclosing the information requested in point ii) of your request. However, guidance issued
bv the ICO refers to a case in which the Information Commissioner observed that "the purpose of
section 14 must be to protect the resources (in the broadest sense of that word) of the public
authority from being squandered on disproportionate use of the Freedom of Information Act 2000".
In considering this it is necessary to consider the broader picture, encompassing the "volume of
your requests both to this Office and to other public authorities in respect of related issues. Your
request (and more significantly your pattern of previous requests) needs to be seen in this light. In
the round responding to your requests imposes a disproportionate burden. In this context I note
that the page for "the Real r'\
~ncil" includes a logo promising "massive waste of time ahead"
and a strapline that "I love wasting people's time and money". I am aware that this page has not
been used since 2014 and also that your "what do they know" account is currently suspended.
However i cannot accept that you would not have had the opportunity to remove this logo and
strapline if it did not reflect your attitude to the rights afforded to you by the Freedom of Information
Act 2000. It is further evidence that your request is vexatious.
It is also relevant that ICO guidance suggests that one indicator of a vexatious request include if
"the tone or language of the requester's correspondence goes beyond the criticism that a public
authority or its employees should reasonably be expected to receive" and Mr Critchfield referred to
a suggestion in your 27 May 2016 e~mail (in respect of a previous request for information) that I
might be biased. I have identified a number of similar allegations encompassing both my
organisation and the bodies overseen:

<9

On 23 May 2016 you asked "how has the Ministry of Justice managed to deteriorate to
such a state that it is staffed by dishonest people and even worse the governing bodies in
piace to encourage complaints actually encourage it?
You stated on 27 May 2016 that "my suspicions are now conformed that the Judicial
Appointments and Conduct Ombudsman is an organisation put in place at the expense of
the taxpayer to give the appearance that holders of judicial office are accountable. It takes
little concluding that legislation governing investigatory powers has been enacted to enable
its application to cases with such flexibility that the same complaint could either fall within
the Ombudsman's remit and be accepted for investigation or be considered outside his
remit and rejected.
You stated in his 2 December 2016 request for an Internal Review that "the establishment v
the people mentality is all took obvious with the Ombudsman implying he could not care
less about altering his view because he considers himself in the clear as the time limit for
seeking a Judicial Review has passed". You also made inferences regarding the honesty of
HM Courts and Tribunals Service staff.

i appreciate that my organisation's role is to consider and adjudicate on complaints at the end of an
often lengthy process largely originating from disputes which themselves are considered by
Judicial Office Holders. It is therefore unsurprising that I receive critical correspondence, some of
which is couched in more confrontational language. The terms of your criticisms would not, in
themselves, be sufficient to cause me to conclude that your request was vexatious. However it is a
factor which supports that conclusion.
Section 12 of the Freedom 011n10rmation Act 2000
Mr Critchfield also advised you that, even if your overall request was not deemed vexatious
that it would not provide the information requested under point ii) as the cost of doing so wa~
disproportionate. You have not queried his observations and so I have not reviewed that
determination. Nor have I formed a view as to whether there might be other sections of the
Freedom of Information Act 29000 that would preclude disclosure if I had not determined
your request to be vexatious.

Conclusions
I apologise for the fact that it has taken longer than required to determine your requests for
information.
I have agreed with Mr Critchfield's conclusion that your request is vexatious and should be refused
under section 14 of the Freedom of Information Act 2000.
I have not reviewed Mr Critchfield's assessment that, even if the request were nor rejected as
vexatious, then the cost of complying with point ii) would be disproportionate and this would be
rejected under section 12 of the Freedom of Information Act 2000.
You are aware that you have the right to apply to the Information Commissioner's Office for a
decision if you are unhappy with my conclusions. The Information Commissioner's Office is at
Wycliff House, Water Lane, Wilmslow, Cheshire SK9 5AF.
Yours sincerely

Paul Kernaghan CBe QPM

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