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IN THE MATTER OF AN APPEAL TO THE FIRST-TIER TRIBUNAL

(INFORMATION RIGHTS) UNDER SECTION 57 OF THE FREEDOM OF


INFORMATION ACT 2000

EA/2017/0019
B E T W E E N:-

Appellant

- and -

THE INFORMATION COMMISSIONER


Respondent

COMMISSIONERS RESPONSE

A. Introduction

1. This Response is served in accordance with rule 23 of the Tribunal Procedure


(First-tier Tribunal) (General Regulatory Chamber) Rules 2009.

2. The Information Commissioner (the Commissioner) hereby acknowledges


the service upon him of a Notice of Appeal submitted by Mr (the
Appellant) dated 7 February, against the Commissioners Decision Notice
reference numbers FS50636996, FS50637737, FS50637994 and
FS50639222, dated 10 January 2017.1

3. The appeal is brought under section 57 of the Freedom of Information Act


2000 ("FOIA).

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The Appellant referred his complaints on four separate occasions, generating four different reference numbers,
but all dealt with in a single Decision Notice.

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4. The Commissioner opposes the appeal. The grounds upon which she relies
are set out below.

B. Background

5. The Appellant has made numerous requests to North East Lincolnshire


Council (the Council) since 2011. Sometimes these are under his own
name, at other times under a pseudonym, fFaudwAtch UK.

6. So far as is relevant to this Appeal, the Council refused six of these requests
by the Appellant, relying on section 14(1) FOIA i.e. on the basis that the
requests were vexatious.

7. On 19 May 2016 the complainant requested (the First Request):

Re, "Response: The document was produced by the Debt


Management section of the Local Taxation and Benefits Team in North
East Lincolnshire Council. We can confirm that it was signed by
[redacted name], on behalf of North East Lincolnshire Council, as true
to the best of his knowledge and belief."

Who was the officer responsible for producing content within the
witness statement who knew that what was stated was untrue?

8. The Council refused the First Request under section 14(1) on 26 May 2016.
The complainant requested an internal review on 26 May 2016. The Council
confirmed on 12 July 2016 that it maintained its position.

9. On 27 June 2016 the complainant requested (the Second Request):

[redacted name], North East Lincolnshire Council's Solicitor and


Monitoring Officer implied a threat in an email sent 18 May 2016
concerning fraud and perjury, his correspondence contained the
following:

[redacted URL]

"You will no doubt appreciate that making allegations including perjury


which are found to be unsubstantiated and/or not evidenced is itself a
serious matter."

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[redacted name], Head of Audit and Assurance, Northern Lincolnshire
Business Connect has since concluded that the allegations were
unsubstantiated.

What does North East Lincolnshire Council hold on record with regard
to taking action against the accuser in the serious matter of making
allegations including perjury which have been found to be
unsubstantiated?

10. The Council refused the Second Request under section 14(1) on 6 July 2016.
The complainant requested an internal review on 6 July 2016. The Council
confirmed on 7 July 2016 that it maintained its position.

11. On 29 June 2016 the complainant requested (the Third Request):

Please disclose completed Council Tax CIPFA benchmarking club


questionnaires for all years since 2008 to present.

12. The Council refused the Third Request under section 14(1) on 8 July 2016.
The complainant requested an internal review on 8 July 2016. The Council
confirmed on 12 July 2016 that it maintained its position.

13. On 29 June 2016 the complainant requested (the Fourth Request):

Please disclose whether [redacted name], Head of Audit and


Assurance, Northern Lincolnshire Business Connect is an employee of
North East Lincolnshire Council.

If so please disclose the cost to taxpayers of this employment.

If not an employee of the Council and the service he provides is


contracted out then I would like that cost to the taxpayer in respect of
the contract.

14. The Council refused the Fourth Request under section 14(1) on 6 July 2016.
The complainant requested an internal review on 6 July 2016. The Council
confirmed on 7 July 2016 that it maintained its position.

15. On 5 July 2016 the complainant requested (the Fifth Request):

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See content of relevant correspondence.

[redacted URL]

[redacted URL]

[redacted name], head of Audit and Assurance makes the statement


below in response to allegations that the council made a false
statement to the court to seek permission to enforce unpaid Council
Tax which wasn't outstanding.

"It has been concluded that the actions taken by officers regarding your
Council Tax account were correct based on the information and
correspondence made available to them at the time... "

The above implies that the council, although aware now, were not at
the time that the statement it submitted to the court was untrue.

Nevertheless, the council continues taking steps to recover the sum,


perhaps because it deems ultimately it to be the judge's responsibility
for granting permission and therefore madness not to exploit it (around
500 unwarranted court costs and bailiff fees added to date).

Q1. What information does the council hold regarding its policy in
dealing with the accounts of Council Taxpayers against whom a court
order to enforce has been obtained when subsequently it has become
apparent that the application should not have been made.

Q2. Is there a statutory provision available for the council to have an


order set aside (or similar) and if so under what Act or Regulations
does that provision fall.

Q3. Please state the number of times the council has set aside a court
order (if that provision exists) to enforce Council Tax.

16. The Council refused the Fifth Request under section 14(1) on 8 July 2016.
The complainant requested an internal review on 12 July 2016. The Council
confirmed on 12 July 2016 that it maintained its position.

17. On 13 July 2016 the complainant requested (the Sixth Request):

I refer to North East Lincolnshire Council's Annual Fraud Report


2015/2016 in which it states the following:

https://www.nelincs.gov.uk/wp-content/up...

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"....Two employees have been dismissed for misconduct, although it
should be noted that Internal Audit had a relatively a small role within
this wider investigation. In seven cases there was either no case to
answer or insufficient evidence to pursue the investigation further; "

I would like disclosing;

1. the period the above investigations into allegations of fraud were


carried out, for example April 2015 to April 2016.

2. whether correspondence [redacted URL] dated 21 April sent to the


council referred to in this response [redacted URL] was included in
the in the seven cases referred to in the report and if so did it relate
to the two employees who were dismissed for misconduct.

3. A brief description of all the matters investigated and/or link to


relevant reports

18. The Council refused the Sixth Request under section 14(1) on 13 July 2016.
The complainant requested an internal review on 14 July 2016. The Council
confirmed on 14 July 2016 that it maintained its position.

19. In July, the Appellant referred all of these refusals by the Council to the
Commissioner, who allocated the following reference numbers:

a. The First and Sixth Requests FS50637994


b. The Second and Fourth Requests FS50636996
c. The Third Request FS50637737
d. The Fifth Request FS50639222

20. It will be seen from the above quotations that the requests relate to the
Councils administration of Council Tax, encompassing individual officers who
carry out that function on the Councils behalf.

C. Relevant legal framework

21. Section 1(1) of FOIA affords a general right of access to information from
public authorities on request, and a corresponding duty on public authorities
to comply with such a request by (a) confirming or denying that it holds the
requested information and (b) communicating the information to the requester.
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22. Section 14(1) of FOIA, however, provides that:

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

23. The term vexatious is not defined in FOIA, but the Upper Tribunal has held
that vexatious connotes manifestly unjustified, inappropriate or improper use
of a formal procedure: Information Commissioner v Dransfield [2012] UKUT
440 (AAC) at [27].

24. In his appeal to the Court of Appeal in Dransfield v ICO & Devon County
Council; Craven v ICO & Department for Energy and Climate Change [2015]
EWCA Civ 454, Mr Dransfield did not challenge this guidance (see [7] of that
judgment). Lady Justice Arden, at [68], emphasised that the assessment
should be made having considered all the relevant circumstances in order to
reach a balanced conclusion as to whether a request is vexatious.

25. If requests are vexatious, the FOIA duty does not apply. There is no public
interest test.

D. Application of the exemption

26. The Commissioner maintains her conclusion that the Appellants information
requests were vexatious for the reasons set out in her Decision Notice see
paras 16-23. The requests were manifestly unjustified, in that the resources
required toanswer the requests was disproportionate to the value of doing so.
The purpose of the request was to improperly continue an underlying
grievance relating to Council Tax collection.

27. The Appellants unjustified persistence has, moreover, placed an inordinate


burden on the Council. These six requests are understood to be merely a
fraction of the Appellants interactions with the Council. Although the Council
has provided no data on this point, it is self-evident that substantial public

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resources either have been (or would have had to be) expended to reply to
his correspondence and respond to his information requests. The Appellants
requests make extensive reference to previous correspondence, often
providing hyper-links to other documents. This would inevitably result in staff
being diverted from legitimate information requests not to mention other
public functions to carry out searches, respond to his requests and carry out
internal reviews. This burden is disproportionate.

28. It is moreover clear that the information requests should be understood as


part of an ongoing barrage, which is concerned not so much with obtaining
information as with the Appellants belief that he has been maligned by the
Council. This is plainly an improper use of the rights under FOIA.

29. The personal nature of the requests emphasises the lack of public interest or
utility in the information sought. To the extent that the Appellant is even
genuinely seeking information, rather than merely prosecuting his underlying
grievance in another forum, that information is of no interest to any person
other than himself.

E. The Appellants Grounds of Appeal

30. The Appellants Grounds of Appeal provide further evidence, if any was
needed, that his requests arise out of and are inextricable from his personal,
substantive complaints regarding the Councils legitimate and proper
administration of Council Tax. This is the Background set out in detail at
paragraphs [2-11], and a significant proportion of the rest of the document
simply re-litigates the underlying complaint. The purpose of the FOIA regime
is not to provide further avenues for pursuing substantive complaints. This
Tribunal is not the forum for such matters to be aired or adjudicated.

31. The Appellant says at para [14] that the FOIA regime was introduced in order
to provide a cheap and effective way to find out areas where public bodies
are failing, without directly having to deal with those who may have been
affected. That is right, to the extent that FOIA allows a right of access to
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information held by public authorities, and that such information may reveal
failings. What the FOIA regime is not intended to do is allow individuals to
relentlessly pursue allegations of failings, even where those allegations have
been dismissed by responsible institutions.

32. The Appellant refers to paras 18-19 of the Decision Notice at paras 39-49 of
his Grounds of Appeal, but does not indeed, cannot rebut the point made
by the Commissioner that the proper avenues for such complaints have been
tried and have led nowhere. The Appellant asserts that the Commissioner
had a responsibility to weigh up if the complainant genuinely believes that the
Councils investigation was conducted improperly. If the belief is genuine then
on the balance of probabilities the reason for the request would more likely be
for obtaining information that would assist further action being embarked
upon. The Commissioner does not doubt the sincerity of the Appellants
beliefs in this matter the question is whether his requests are vexatious. For
the reasons set out above, they were.

33. The Appellant further argues that the corruption of the Council makes this a
matter of public interest, as opposed to a mere personal grievance. In making
that argument, he in fact highlights one of the factors that tends to show that
the requests were vexatious: namely, his use of the FOIA regime despite
having exhausted more appropriate forums. The question of the Councils
alleged corruption, or indeed any wrongdoing, has been considered by other
public authorities, including the Local Government Ombudsman and the
police, in addition to the court itself, who have powers to inspect documents if
they deem it necessary. It is therefore implausible for the Appellant to argue
that there is a public interest in exposing corruption, given that the relevant
bodies have found that the Appellants concerns have no merit / do not
warrant further action. Where a requester simply asserts, time and again, that
information will reveal corruption and demand disclosure ad infinitum, that is a
factor which supports, rather than militates against, a finding of
vexatiousness.

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34. For the avoidance of doubt, to the extent that the Grounds of Appeal refer to
details of the Appellants underlying grievance and procedural history, it
should be noted that there is no public interest test once section 14 is
engaged.

F. Conclusion

35. For the reasons set out above, the Tribunal is invited to find that the
Appellants requests were vexatious, in that they were manifestly unjustified,
inappropriate and an improper use of FOIA. Accordingly, the section 14(1)
exemption applies and section 1(1) FOIA does not apply to those requests.

G. Procedural matters

36. The Commissioner agrees with the Appellant that this matter can be
determined without a hearing.

LEO DAVIDSON
15 March 2017

Name and address of Respondent / Address for service:-

Nicholas Martin
Information Commissioners Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Email: nicholas.martin@ico.gov.uk