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

RIGHTS) UNDER SECTION 57 OF THE FREEDOM OF INFORMATION ACT 2000

Appeal No. EA/2017/0062

BETWEEN:-

Appellant

- and -

THE INFORMATION COMMISSIONER

Respondent

RESPONSE OF THE INFORMATION COMMISSIONER

A. Introduction

1. This is the Response of the Information Commissioner (the Commissioner) to the

appeal brought by Mr (the Appellant) under section 57 of the Freedom of
Information Act 2000 (FOIA) against her decision notice of 6 March 2017 Ref.
FS50622654, FS50636574, FS50636604, FS50637739 and FS50650239 (the DN).
The Response is served in accordance with Rule 23 of the Tribunal Procedure (First
Tier Tribunal) (General Regulatory Chamber) Rules 2009.

2. The Commissioner submits that the appeal should be dismissed for the reasons given
in the DN and in this Response. The Appellant has failed to set out in the grounds of
appeal why the Commissioners Decision Notice is not in accordance with the law or
that the Commissioner ought to have exercised her discretion differently.

3. The Appellant has stated that she wishes for a paper hearing of this appeal. The
Commissioner agrees that such a mode of hearing is appropriate and consents to this
matter being dealt with on the papers.

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B. The Applicable Law

4. A person requesting information from a public authority has a right to be informed by

the public authority in writing whether it holds the information (s.1(1)(a) FOIA) and to
have that information communicated to him, if the public authority holds it (s.1(1)(b)
FOIA).

5. However, s.14(1) FOIA provides that a public authority is not required to comply with a
request for information under s.1(1) FOIA if a request is vexatious. There is no public
interest test. Section 14 FOIA is not an exemption, although it is sometimes referred to
as a procedural exemption.

6. FOIA does not define or give guidance on the interpretation of the term vexatious.
However, the Upper Tribunal has considered the meaning of the term vexatious in
s.14 FOIA in detail in its decision in The Information Commissioner v Devon CC &
Dransfield GIA/3037/2011 [2012] UKUT 440 (AAC). Its overall analysis of what may
constitute a vexatious request under s.14 FOIA is found at 24-39 of that judgment.

7. It remains appropriate to set out the details of the Upper Tribunals formulation of
guidance as to the meaning of vexatious as it was not challenged on 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 (6 and 77
79). Arden LJ expressly recorded at [6] that the UT went on to formulate and apply
guidance as to the meaning of vexatious which [the appellant] has not challenged.

8. Therefore the Upper Tribunals guidance remains binding on the First Tier Tribunal. By
way of overview in the Upper Tribunal Dransfield decision, Judge Wikeley stated that:

The purpose of section 14must be to protect the resources (in the broadest
sense of that word) of the public authority from being squandered on
disproportionate use of FOIA (10) Arden LJ approved that formulation in the
Court of Appeal, subject to the rider that it was an aim which could only be
realised if the high standard set by vexatiousness is satisfied: at [72].

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9. He continued that;

The question ultimately is this is the request vexatious in the sense of

being a manifestly unjustified, inappropriate or improper use of FOIA? ([43])

10. The lack of justification and proportionality in the request are central to the above test
([26]/[27]). The Upper Tribunal took the view that it was helpful to approach the
question of whether a request was vexatious by considering four broad issues or
themes ([28]). The four broad issues or themes are:

The burden imposed on the public authority by the request

11. The present or future burden on the public authority may be inextricably linked with
the previous course of dealings. Thus the context and history of the particular request,
in terms of the previous course of dealings between the individual requester and the
public authority in question, must be considered in assessing whether it is properly to
be characterised as vexatious. In particular, the number, breadth, pattern and duration
of previous requests may be a telling factor ([29])

The motive of the requester, and the value or serious purpose of the request

12. Although the provisions of the FOI and EIR are motive blind, the Upper Tribunal
noted that [w]hat may seem like an entirely reasonable and benign request may be
found to be vexatious in the wider context of the course of dealings between the
individual and the relevant public authority ([34]).

13. The Upper Tribunal commented that the question to be asked is does the request
have a value or serious purpose in terms of the objective public interest in the
information sought?...a lack of apparent objective value cannot alone provide a basis
for refusalunless there are other factors present which raise the question of
vexatiousness ([38]).

Any harassment of, or distress caused to, the public authoritys staff.

14. vexatiousness may be evidenced by obsessive conduct that harasses or distresses

staff, uses intemperate language, makes wide-ranging and unsubstantiated allegations
of criminal behaviour or is any other respects extremely offensive ([39]).

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Holistic approach

15. However the Upper Tribunal made it clear that the above factors were not intended to
be exhaustive, nor meant to create [a]formulaic check-list, the Upper Tribunal
stressed the:

importance of adopting a holistic and broad approach to the determination of

whether a request is vexatious or not, emphasising the attributes of manifest
unreasonableness, irresponsibility and, especially where there is a previous
course of dealings, the lack of proportionality that typically characterise
vexatious requests ([45])

16. Similarly in the Court of Appeal Arden LJ held that a rounded approach was required,
which did not leave out of account evidence, including past requests, which was
capable of throwing light on whether the request was, for example, part of a campaign
to gain personal satisfaction, in the light of previous abuse and unsubstantiated
allegations ([69]). Arden LJ also set out some additional guidance at [68]:

. I consider that the emphasis should be on an objective standard and

that the starting point is that vexatiousness primarily involves making a
request which has no reasonable foundation, that is, no reasonable
foundation for thinking that the information sought would be of value to the
requester, or to the public or any section of the public. Parliament has chosen
a strong word which therefore means that the hurdle of satisfying it is a high
one, and that is consistent with the constitutional nature of the right. The
decision maker should consider all the relevant circumstances in order to
reach a balanced conclusion as to whether a request is vexatious. If it
happens that a relevant motive can be discerned with a sufficient degree of
assurance, it may be evidence from which vexatiousness can be inferred. If a
requester pursues his rights against an authority out of vengeance for some
other decision of its, it may be said that his actions were improperly motivated
but it may also be that his request was without any reasonable foundation.
But this could not be said, however vengeful the requester, if the request was
aimed at the disclosure of important information which ought to be made
publicly available.

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C. Background

17. The Commissioner understands the following incidents to have prompted the requests
that are the subject of this appeal:

Allegations of Council Tax Fraud and Perjury

18. On 11 May 2011 the Appellant received a summons for the non-payment of council tax
and was requested to appear before Grimsby Magistrates Court on Thursday 2 June
2011. The Appellant was concerned about the increase in the Councils costs
(including the fees for Rossendale bailiffs which were sought to be recovered), and the
Magistrates ability to monitor and check the large volumes of applications considered.

19. On 2 August 2011 the Appellant submitted a complaint to Humberside Police relating
to the Magistrate Courts process for handling and considering large volumes of
applications for liability orders from the Council. Humberside Police referred the
complaint to its Legal Services Unit and on 23 April 2012 confirmed that the procedure
used by the Council was legitimate and the summons had been properly issued.
Humberside Police confirmed that the matter was not an issue for the police to
investigate and that if he wished to pursue the issue he ought to pursue the matter in
the court.

20. The Appellant subsequently submitted allegations to Humberside Police that the
Council and its bailiffs (Rossendale bailiffs) had committed fraud in relation to the
collection and enforcement of council tax.

21. On 4 February 2014 Humberside Police informed the Appellant that it would only
investigate matters in circumstances where there are good grounds to believe that a
criminal offence has been committed, and bearing in mind resource availability,
government and local priorities, and competing priorities of other ongoing
investigations. The decision on whether or not to investigate an allegation of fraud, and
the resources to be devoted to any such investigation was a matter for the police to
decide. Humberside Police had conducted enquiries with the Councils tax department
and their counterparts at Hull City Council. However, having done so, Humberside
Police did not consider the Appellants allegations to be of a criminal nature, and
confirmed that it would not be conducting an investigation for the same reasons that
had also been previously set out in a letter to the Appellant on 9 November 2013.

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22. The Appellant submitted an appeal to the IPCC on 5 March 2014 on the basis that
Humberside Police had incorrectly recorded the complaint as an organisational matter.
The IPCC concluded that Humberside Police ought to have classified the complaint as
a conduct matter, and notified the police force accordingly.

23. Subsequently the Council applied for a Council Tax liability order against the Appellant
in the 2015/16 tax year. The Appellant submits that sufficient payments were made to
meet the demand notices so the account was never in arrears, but the Council had
allocated the payment of the monies incorrectly to a previous debt so as to result in
non-payment. The Appellant alleged that a Council employee had signed a false
statement in support of the application. A liability order was granted by Grimsby
Magistrates Court in October 2015 and the Appellant alleges that the judge presiding
over the matter was therefore complicit in the alleged perjury.

24. The Appellant invited Humberside Police to investigate the allegations of perjury but
the police force declined.

25. The Appellant wrote to Grimsby Magistrates Court on 15 January 2016 to ask the
Court to confirm that the Council had in fact produced a false witness statement, and
inform Humberside Police so that they could commence an investigation. The Court
replied on 26 January 2016 stating that it would not be taking any action regarding the
allegations.

26. The Appellant appealed against Humberside Polices decision not to pursue the matter
on 25 January 2016, and subsequently applied to commence criminal proceedings
against Humberside Police by issue of a summons for failing to exercise its powers
under s.26(5) and (6) of the Criminal Justice and Courts Act 2015. The court
considered the application on 26 April 2016 and refused to issue a summons on the
basis that the application and grievance was concerned with the October 2015 order
and the evidence of the Council which he had had an opportunity to appeal but chose
not to do so. It was the courts view that the Appellant was using the application as a
further means to pursue his grievance.

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 Allegations of False Conviction and Perjury

27. On 27 August 2015 the Appellant was involved in an incident which led to him being
arrested by PC Thomas Blake and charged with an offence under s.5 of the Public
Order Act 1986. Two members of the public provided witness statements for the
purposes of the criminal proceedings. The Appellant believes that PC Thomas Blake
had incited at least one of the witnesses to make a false statement and that both
witnesses had made false statements therefore committing perjury before the court.

28. A hearing in relation to this offence took place on 30 September 2015. The Appellant
attended and pleaded not guilty. The court directed that the Appellant was prohibited
from cross-examining the witness in person and arrangements were made for a
solicitor to do so at a further hearing listed for 15 December 2015.

29. The Appellant submitted a complaint to Humberside Police on 8 November 2015

regarding PC Thomas Blake, alleging that he had incited the witnesses to commit
perjury. On 2 December 2015 the Appellant wrote to Humberside Police and
requested that it also investigate his allegations that the two members of the public
had made false statements before the court.

30. In response Humberside Police explained on 3 December 2015 that his complaint was
to be held sub judice at the time as there were outstanding criminal proceedings which
were the correct forum to challenge such matters. Humberside Police explained that it
is not the practice to investigate such allegations unless the magistrates or judge
makes comment about the evidence and recommends that the police force
investigates the matter, unless there are aggravating circumstances. In the Appellants
case Humberside Police did not consider that he had provided any evidence, other
than his opinion, which suggested that it was necessary to carry out an investigation.
Humberside Police therefore recommended that he challenge the witness evidence
through the court system.

31. The Appellant subsequently forwarded his complaint regarding PC Thomas Blake to
the Court on 11 December 2015, together with an account stating that two members of
the public had both made untrue witness statements.

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32. The Appellant did not attend the hearing on 15 December 2015 as he did not consider
the presiding judge to be a fit and proper person to hear the case. This was on the
basis that the judge presiding over the matter was the same judge who had presided
over the above mentioned Council tax proceedings, and who had accepted the Council
employees statement which the Appellant also believed to be false. The Appellant
was convicted of the offence under s.5 of the Public Order Act 1986 and sentenced on
22 December 2015.

33. The Appellant wrote to Humberside Police on 1 February 2016 and confirmed that the
relevant Magistrates court had refused to reopen the case and he was receiving no
co-operation from the court regarding its decision. In that correspondence the
Appellant indicated that he has for the foreseeable future decided against appealing
but would like an update on the police forces investigation into his complaint regarding
PC Thomas Blake, and otherwise sought confirmation that the allegations of the two
false witness statements had been recorded as crimes.

34. Humberside Police responded on 11 and 24 March 2016, after a further exchange of
emails, and reiterated that the police force does not investigate allegations of perjury
unless a request to do so comes from the court, and that as perjury is not a victim
based crime the allegations had not been recorded as a crime.

35. The Appellant subsequently appealed the Magistrates decision to the Crown Court on
12 April 2016. However the appeal was out of time and leave to appeal was refused on
15 April 2016 on the basis that the Appellant had absented himself from the trial and
had not provided an adequate reason for appealing out of time.

D. The Requests & the Decision Notice

36. The Appellant submitted the following requests for information to Humberside Police
via the WhatDoTheyKnow website under the pseudonym fFraudWatch UK:

37. 3 December 2015 (Humberside Police Fraud Unit FS50622654):

A letter sent presumably towards the end of 2013 (see above link) but with
almost certainty after 8 November 2013, deals with a response from the force's
Economic Crime Unit's refusing to act on evidence of North East Lincolnshire

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 Council abetting its bailiff contractor to defraud residents whilst enforcing
alleged council tax debt

I would like all the information held by Humberside police relating to the
investigation that led to the decisions outlined but had nothing backing them
up.

38. Humberside Police refused to comply with the request on 20 January 2016, relying on
s.14(1) FOIA to do so. The Appellant requested an internal review on 21 January
2016. Humberside Police conducted an internal review and confirmed that it
maintained its position on 18 March 2016.

39. 23 December 2015 (Fabricate evidence to stitch-up victim in order to defraud through
fines / court charges etc FS50637739):

Please disclose any policy Humberside police holds which relates to

fabricating evidence, turning blind eye to false witness statement, inciting
witnesses to commit perjury etc. etc., in order to defraud an innocent person
with financial penalties through the criminal justice system.

40. Humberside Police refused to comply with the request on 20 January 2016, relying on
s.14(1) FOIA to do so. The response was provided in response the request
concerning the Humberside Police Fraud Unit above. The Appellant requested an
internal review on 1 June 2016, but no internal review took place.

41. 9 February 2016(Police Solicitor Duty Solicitor FS50650239):

1) How much taxpayer's money is paid to the force's solicitor for the purposes
of perverting the course of justice, i.e., avoiding crime committed by, or on
behalf of the state?

2) As the case used in the example showed total incompetence, can it be

confirmed that Humberside police's solicitor is the same solicitor with the 'so
called' independence status as per the force's "Duty Solicitor"?

42. Humberside Police refused to comply with the request on 7 March 2016, relying on
s.14(1) FOIA to do so. No internal review was requested.

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43. 7 March 2016 (Reported crime submitted to Humberside Police (28 February 2016)
FS50636604):

I would like disclosing who or what department has dealt with or will be dealing
with the crime, in relation to the report submitted 29 February 2016, below:

"I hold evidence in the form of two witness statements dated 27 August
and 1 September 2015 produced by [names redacted] about which
there is no question that they contain outright lies.

As a consequence I wish to formally report crimes in the matter of

perjury with regards to the witness statements produced by [names
redacted] as they contain evidence that both witnesses have wilfully
perverted the course of justice by means of false and corrupt
statements

44. 9 May 2016(Complaint (CO/00432/15) FS50636574):

This request relates to an innocent member of the public being stitched-up

with the suspected motivation being that the victim had got on the wrong side
of the police by highlighting matters for which the force is complicit in
substantial fraud.

A complaint was made about PC Thomas Blake on 8 November 2015, as it

was suspected that this officer had incited witnesses (who had lied) to commit
perjury, but six months on there is no outcome.

Please disclose records held by the force relating to this matter.

45. Humberside Police did not respond to the 7 March and 9 May 2016 requests.

46. The Appellant submitted complaints to the Commissioner regarding Humberside

Polices handling of the above requests on 24 March 2016, 13 July 2016, 25
September 2016, 15 May 2016 and 2 July 2016 respectively. The Commissioner wrote
to Humberside Police which confirmed that it was relying on s.14(1) FOIA to not
comply with all of the above requests for information.

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47. The Commissioner considered the submissions of both parties (DN [18] [22] and [23]
- [28]). Having done so, the Commissioner considered that the Appellant was pursuing
complaints that had long been adjudicated (DN [31] [32]), in an unreasonably
persistent manner which had imposed a real burden on Humberside Police.
Furthermore the Commissioner considered the requests to have caused a
disproportionate and unjustified level of disruption, irritation and distress (DN 34]). The
Commissioner concluded that the Appellants complaints had been adjudicated and
the requests no longer had any serious purpose, and little or no value to the general
public; the requests were therefore an unjustified and improper use of FOIA (DN [35]).
Accordingly the Commissioner found that Humberside Police was entitled to rely on
s.14(1) FOIA to not respond to the requests (DN [2], [35])

E. The Grounds of Appeal

48. In his grounds of appeal the Appellant asserts that:

(a) The correspondence which Humberside Police received from the Appellant
was justified and proportionate given that Humberside Police had failed to
address his concerns,

(b) The correspondence has not placed a burden on Humberside Police given
the brief responses provided, and the overall resources available to
Humberside Police.

(c) Humberside Police has not identified or investigated the Appellants concerns
to a satisfactory standard.

(d) Humberside Police incorrectly informed the Commissioner that it had

investigated the Appellants concerns relating to a particular named officer
and found those concerns to be untrue.

(e) The language adopted in his correspondence is only as a result of the

miscarriage of justice he has suffered.

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F. The Commissioners Response

49. The Commissioner resists this appeal. Generally, the Commissioner relies on the DN
as setting out her findings and the reasons for those findings, and repeats the matters
stated therein. The Commissioner nonetheless sets out below her observations in
respect of the Appellants Grounds of Appeal with reference to the guidance provided
by the Upper Tribunal in Dransfield.

Burden

50. Humberside Police explained to the Commissioner that it had exchanged a significant
amount of correspondence with the Appellant. The requests began in 2011 as a result
of the process used by the Council to collect council tax, including their use of
Rossendale bailiffs. The first requests concerned the bailiff company but further
requests were received relating to the Appellants allegations that police and council
officers had committed fraud and perjury. The Appellant is also believed to have
submitted further requests under pseudonyms, albeit that they were not progressed as
no proof of identification was provided.

51. Consistent with the important, but qualified, right that section 1 FOIA provides, the
Tribunal should be mindful of the need, expressed in s.14, not to overburden public
authorities inappropriately. There is a balance to be struck; a point which was well
expressed by the Tribunal in Havercroft v Information Commissioner (EA/2012/0262):

Public bodies are responsible for the delivery of vital services and the use of
large sums of public money: they are under a duty to deliver those services
effectively and use their resources economically and efficiently. In carrying out
their roles they must be publicly accountable and the FOIA regime is intended
to enhance that accountability. However there are many aspects to
accountability, and FOIA is not the sole means, nor can it substitute for the
others. The primary function of public bodies is the delivery of services and if
management time and resources are disproportionately spent in dealing with
FOIA requests then those services, and the decision-making around the
delivery of services, may suffer to the detriment of the public. (at [30])

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52. The Commissioner submits that the previous course of dealings and requests between
the Appellant and Humberside Police have clearly imposed a considerable burden on
Humberside Police. The requests in the present matter are a continuation of the
Appellants wider complaints further adding to the burden being imposed, which is
disproportionate and inappropriate given that the substantive issues have already
been considered by Humberside Police and the requests have no objective value or
serious purpose to the wider public.

Motive and Value / Serious Purpose

53. It is clear that the Appellant is dissatisfied with the manner in which Humberside Police
and the court has treated his various allegations. The requests appear to have been
submitted with a view to venting dissatisfaction and seeking Humberside Polices
further engagement in matters that it has already considered. However, the
Commissioner remains of the view that the requests have no objective value or serious
purpose to the wider public. The requests are clearly directed at or connected to the
Appellants own complaints and allegations relating to his Council Tax arrears and
conviction which are inherently of a private nature.

54. Furthermore the Appellant either has, or has had an opportunity, to pursue his
allegations via other more appropriate forums including the relevant court proceedings.
Humberside Police considered the Appellants allegations but decided not to pursue
the issues which he had raised, particularly given that the appropriate forum for
challenging such matters was via the relevant court proceedings. The Appellant
appears to have also raised the issues with the court but the court did not pursue the
Appellants complaints. Whilst the Appellant remains dissatisfied with Humberside
Police and the courts actions / inaction ultimately the decision whether to pursue the
Appellants allegations was a matter for the police and the courts. The Commissioner
has not seen any evidence to demonstrate that Humberside Police and the courts
actions have been unreasonable. The Appellants resort to FOIA appears to be a
further means of venting his dissatisfaction with Humberside Police and the courts
decisions and in the context of the wider course of dealings the requests are
manifestly unreasonable and disproportionate.

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 Harassment of, or distress caused to, the Humberside Polices staff

55. The Appellant has been persistent in his correspondence with Humberside Police
despite the police force clearly setting out that his substantive complaints ought to
have been raised and considered during the relevant court proceedings. The requests
are unreasonably persistent given Humberside Police, the IPCC, and the Courts
previous considerations of the issues.

56. The Appellant has on a number of occasions used abusive language. The
Commissioner would refer the Tribunal to the following examples of comments which
the Appellant has made in correspondence with Humberside Police:

Since it has been discovered without any doubt that the taxpayer has been
contributing to, and paying into the pension of the Chief Constable, Police and
Crime Commissioner any other self serving parasites (see note *).Please
release recorded information..which outline the financial awards they can
receive if they F*C** the public off with excuses..* Note: If considered
excessively abusive its only because you dont know the half
(19 July 2014 FOIA request referred to in Humberside Polices response 15
August 2014)

Im assuming you are not the out and out unreasonable filthy self serving s**t
that you portray yourself to be, and the reason it appears you are, is because
you are prepared to take the can for your superior fil**y, self serving shi**y
chief constable in order to retain employment within Humberside Police
foarce
(19 March 2016 response to Humberside Polices internal review in respect of
3 December 2015 request)

G. Conclusion

57. In the Commissioners submission none of the Appellants arguments are sufficient to
alter her findings. The requests which are the subject of her DN are vexatious; they are
manifestly unreasonable and an inappropriate and improper use of FOIA to reopen
and prolong the consideration of issues that have already been considered by
Humberside Police and the court, and which the Appellant had an opportunity to raise
and challenge during court proceedings.

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58. The Appellants grounds do not identify any error of law in the DN or incorrect exercise
of the Commissioners discretion, and the DN correctly addresses the issues which
were present at the time of the original request. Accordingly, this appeal should be
dismissed.

DATED this 2 day of May 2017

Nicholas Martin
Solicitor

For and on behalf of the Information Commissioner

Name and address of Respondent / Address for service:-
Nicholas Martin
Information Commissioners Office
Wycliffe House
Water Lane
Wilmslow
SK9 5AF
Email: Nicholas.Martin@ico.org.uk

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