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IN THE FIRST-TIER TRIBUNAL APPEAL: EA/2017/0019

GENERAL REGULATORY CHAMBER


(INFORMATION RIGHTS)

BETWEEN:

Appellant
and

THE INFORMATION COMMISSIONER


Respondent

APPELLANTS REPLY TO RESPONDENTS


RESPONSE TO NOTICE OF APPEAL

Introduction

1. This Reply is served in accordance with rule 24 of the Tribunal Procedure (First-
tier Tribunal) (General Regulatory Chamber) Rules 2009.

Commissioners Response

2. The argument, on which the Commissioner puts significant weight, has its roots in
guidance produced by the Commissioners Office which advises against using
Freedom of Information (FOI) to reopen grievances which have already been
fully addressed by the authority, or subjected to independent investigation with no
evidence of wrongdoing being found. This appears simply a reference to help
users make effective FOI requests and does not reiterate any of the exemptions
provided under Part II of the Freedom of Information Act 2000 ("FOIA). In any
event it would be wrong to assume just because the information relates to a matter
that the Council had already allegedly addressed, that it would be expected to
review its findings (details of which were never revealed).

3. Notwithstanding that the above is no basis for invalidating a FOI request there is
no evidence whatsoever that the Council had already fully addressed the matter. It
has also been overlooked that the institutions, described by the Commissioner as
responsible (Response 31) do not in fact take a responsible approach with respect
to the rights of the person aggrieved. Contrary to public perception, the role of the
Local Government Ombudsman (LGO), for example, functions to protect Local
Authorities from facing appropriate censuring for causing injustice to their
customers through maladministration. The evidence much more consistently
points to it being a sham organisation put in place at the expense of the taxpayer to
fake accountability. The LGOs involvement was set out briefly in the Appellants
Grounds of Appeal (43 & 45) and clearly the complaint was not investigated.

4. The Commissioner furthers the point in the Response (33) and names those
responsible institutions, i.e. the LGO, the police and the court. All of these,
according to the Commissioner, have considered the Councils corruption/
wrongdoing and found that the Appellants concerns have no merit/do not warrant
further action. However, nothing is offered additional to these assertions that
would support the findings of the public authorities, because had there been any
proper consideration of the issues, the findings would support the allegations.

5. This would answer why the Council refused to provide evidence requested by the
Appellant in general correspondence relating to the alleged internal investigation
into the matter. The outcome, sent by email on 23 June 2016 by the Councils
Head of Audit and Assurance, stated, so far as is relevant, the following:

As set out in previous correspondence from Mr Maione, the Councils


monitoring officer, the audit team has now reviewed the allegations
contained in your email to me dated 22 April 2016 under the auspices of the
Councils whistleblowing policy. A review of all relevant correspondence,
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court papers and interviews with key officers has taken place as part of this
process. 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, and we have found no
evidence that any fraudulent activity has taken place...

6. An email sent by the Appellant 23 June expressing dissatisfaction with the


response and requesting evidence to support its decision was replied to on 1 July
2016 by the Head of Audit and Assurance, containing the following:

Thank you for your email. I can confirm that a detailed investigation was
carried out by members of the audit and assurance team and its work was
reviewed by myself. As per my correspondence dated 23 June we have made
our position clear, based on the evidence of the review, and will not be
corresponding any further on the issue.

7. Clearly anyone who had been adversely affected by the Councils recovery
department, over the protracted period involved, would be unhappy with the
meaningless findings.

Why the polices involvement has no credibility

8. An insight into the relationship between Humberside police and the Council is
given in correspondence from the forces Professional Standards Branch. The
matter concerned the forces refusal to investigate alleged fraud by the Councils
bailiff contractor. Evidence had been supplied of sums fraudulently imposed on
the Councils residents of 325,000 over a set period. Data from a process taking
over a year and a half battling with the Council to obtain it backed up the claim.
The figure only partly represented what would be discovered if investigated and a
fraction of the amount if all councils were accounted for. The outcome letter dated
1 May 2014 contained the following (emphasis added):

DS Wood carried out extensive research into your submission. He also met
with members of the Council Tax Department at the North East Lincolnshire
Council and has spoken with their counterparts at the Hull City Council.

The council have made no report of criminal wrongdoing by the bailiffs.

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Therefore my decision still stands; Humberside Police will not be pursuing
an investigation into this matter for the reasons outlined in DS Woodss
email dated 9th November 2013.

9. The force had bizarrely admitted that the Council, against who the allegations
were made, had been relied upon to rest assure them that there had been no
criminal wrongdoing by the bailiffs. The decision not to investigate on this basis
therefore suggested complicity; if not then incredible naivety to have believed
council officers (under enormous pressure to lie) to say anything other than what
would best protect the Councils reputation and legal position.

10. Referring to the present case, the polices involvement was set out briefly in the
Appellants Grounds of Appeal (46 & 47). Subsequent to the unsuccessful
complaint/appeal procedure which was entered into because of the refusal of the
force to investigate, a private prosecution against the police was embarked upon.
An information was laid on 8 March 2016 in the Magistrates Court, followed on
25 April with supporting evidence [Exhibit A-1] in respect of the application
being considered by a Judge on 26 April in the matter of the force improperly
exercising police powers under the Criminal Justice and Courts Act 2015.

11. A draft of the information had already been sent to the police for comment on 9
February 2016. The evidence supporting the information was also held in some
form or another by the police, though not in the context of an application to begin
a prosecution against the force. As is evident from the contents of Exhibit A-1, the
Judge exercised discretion not to issue a summons for the purpose of bringing
before the court the officer serving with Humberside police who had wrongly
stated perjury was not a matter for the police. The Judge did not consider the
merits of the case regarding the Council officer giving perjured evidence. The
decision was made purely on whether the judge considered the police should be
answerable criminally for its negligence.

The purpose of the FOIA regime

12. The Commissioners Response states so far as is relevant, at 30:

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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.

13. The Appellant is completely in agreement with the above, however, it has
apparently been overlooked that the necessity for raising matters in these
representations has been brought about by the Councils spurious grounds for
determining the requests vexatious. The Commissioner upholding the Councils
decision is another obvious factor.

14. If a request is erroneously labelled vexatious the Commissioner is responsible for


preventing someone from obtaining information that the law entitles them to
access. The consequence of the official error in the present case is material in
compounding the injustice further and possibly preventing years of criminal
wrongdoing by the Council being uncovered. The standard expected of the
Commissioner can not be considered to have been met if a determination of
vexatiousness relies upon on the alleged dismissal by the so called responsible
institutions. If the Commissioner is not prepared to look into the alleged findings,
or has no jurisdiction to question them, then it is unreasonable that they are
exploited in these proceedings to help persuade the Tribunal that the requests were
vexatious.

15. Quite a number of Decision Notices have been located using similar reasons for
justifying applying the vexatious exemption, a couple are provided as examples.
Paragraph 31 of Decision Notice FS50628017:

...The Council added that the complainant is also attempting to reopen an


issue which had already been comprehensively addressed by the Council or
otherwise subjected to some form of independent scrutiny.

16. Paragraph 46 of Decision Notice FS50645184:

...She is satisfied that the continuing requests are a means by which the
complainant is trying to reopen a matter that had already been addressed.
She is of the view that the complainant is using the FOIA to sustain dialogue
with the Council about this matter and that this is a clear misuse of the FOIA
and its purpose..."

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17. The possibility should be considered that this is a routine approach used to cover
up official error. A person who has taken their grievance to a responsible institute
such as the LGO will most likely have already had their injustice added to by its
failure to intervene. For the Commissioner then to present a failure to investigate a
complaint to the Tribunal, as a matter which has been fully addressed, in order to
exploit invalidating an appeal, requires the most acute scrutiny.

Relentless pursuit of failings

18. The Commissioner argues (Response 31) that the FOIA regime is not intended to
allow individuals to relentlessly pursue allegations of failings. This is presumably
referring to the Appellants Grounds of Appeal (19-38) where examples were
given highlighting the benefits FOI requests were providing as opposed the burden
claimed by the Council. It is important to remember that the motivation for
submitting the FOI requests had been invariably down to the Council causing
some or other injustice.

Councils refusal to consider new information

19. The Council seems to have confirmed that the reason for applying the section
14(1) exemption was to avoid disclosing information that would be incriminating.
New information had been obtained after involvement of HMCTS that meant it
was no longer exclusively a matter of perjured evidence being improperly
addressed by the Council. Ten items of post had been discovery relating to the
high court application allegedly sent to the Appellant by the Justices Clerk
[Exhibit A-2]. None of the letters were delivered, though copies dating back to
August 2013 had been obtained.

20. The undelivered post was a separate matter, but relevant to the council was that
the new information, regardless of whether the letters were sent or produced
afterwards, backed up conclusively that the appeal had never been withdrawn. The
Council had no good reason why it should not apply to the Magistrates court to
have the order quashed, but for the fact it point blank refused to consider the new
information [Exhibit A-3].

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Conclusion

21. For the reasons set out above and Appellants Grounds of appeal the Tribunal is
invited to find that the requests had serious purpose and were therefore not
vexatious.

28 March 2017