IN THE MATTER OF AN APPEAL TO THE FIRST-TIER TRIBUNAL (INFORMATION RIGHTS) UNDER SECTION 57 OF THE FREEDOM OF INFORMATION ACT 2000 ANDREW REEVES-HALL

Transcription

1 IN THE MATTER OF AN APPEAL TO THE FIRST-TIER TRIBUNAL (INFORMATION RIGHTS) UNDER SECTION 57 OF THE FREEDOM OF INFORMATION ACT 2000 BETWEEN: EA/2014/0278 ANDREW REEVES-HALL Appellant -and- THE INFORMATION COMMISSIONER Respondent RESPONSE OF THE INFORMATION COMMISSIONER Introduction 1. This Response is served by the Information Commissioner ( the Commissioner ) in accordance with Rule 23 of the Tribunal Procedure (First Tier Tribunal) (General Regulatory Chamber) Rules 2009 to an appeal brought by Mr Reeves-Hall ( the Appellant ) against the Commissioner s Decision Notice reference FER dated 6 th October 2014 ( the DN ). The appeal is brought under section 57 of the Freedom of Information Act 2000 ( FOIA ). 1

2 2. Mr Reeves-Hall s request was made under regulation 5 of the Environmental Information Regulations 2004 ( EIR ) on 21 st November The Commissioner notes the Appellant has indicated this appeal may be determined on the papers. The Commissioner agrees. 4. The Commissioner opposes this appeal. The grounds upon which he relies are set out below. The legal framework 5. The relevant section for the purpose of this appeal is regulation 12 of the EIR which provides a number of exemptions to the duty to provide environmental information under regulation 5. In addition to satisfying one of the exemptions, there is a public interest test in regulation 12(1)(b) which requires that in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information. 6. In the instant case, the public authority relies upon the exemption in regulation 12(4)(b) EIR that the request for information is manifestly unreasonable. 7. The Upper Tribunal decision in Information Commissioner v Devon County Council and Dransfield (GIA3037/2011) ( Dransfield ) is a recent case which considered the issue of vexatious requests under section 14 FOIA. As part of its considerations, the Upper Tribunal held that there is no material difference between the terms vexatious and manifestly unreasonable. The Upper Tribunal s analysis of the term vexatious for the purposes of section 14 FOIA is therefore equally applicable to the meaning of manifestly unreasonable under regulation 12(4)(b) EIR. This case 2

3 is binding on the Commissioner and the First-tier Tribunal ( the Tribunal ) in the instant case. 8. In Dransfield, the Upper Tribunal held at 27/43 that the test for vexatiousness is whether the request is a manifestly unjustified, inappropriate or improper use of a formal procedure. The lack of justification and proportionality in the request are central to the above test ( 26/27). 9. The Upper Tribunal identified the following criteria as relevant to the determination of whether a request is vexatious or manifestly unreasonable. The burden imposed on the public authority by the request 10. In this regard, the Upper Tribunal noted, at 29, that: 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. The motive of the requester 11. 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). The value or serious purpose 3

4 12. The Upper Tribunal held that the question to be asked is [d]oes 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 refusal unless there are other factors present which raise the question of vexatiousness ( 38). Causing harassment of, or distress to, staff 13. The Upper Tribunal commented that vexatiousness may be evidenced by obsessive conduct that harasses or distresses staff, uses intemperate language, makes wideranging and unsubstantiated allegations of criminal behaviour or is any other respects extremely offensive ( 39). The ICO s Guidance Dealing with vexatious requests (2014) 14. In light of Dransfield, the Commissioner published revised Guidance to assist with the determination by public authorities of whether a request is vexatious. Where relevant, the Guidance will be referred to below. Background and requests 15. The Appellant has to date made 33 FOI/EIR requests for information to the Council since In addition, there were over 20 business as usual requests made by the Appellant. The first request, in June 2009, was for information regarding how much money was paid to people and organisations involved in an art project in the town where the Appellant lives. Since then, the requests have broadly covered the operation of the local Business Centre, the remuneration and expenses of a particular local councillor, road safety, signage and the wearing of high-visibility jackets, grants to the local parish hall and village halls, various planning and land registry matters, the 4

5 number of FOI requests made to the Council, the number of school days lost to industrial action, participation in bike to school week and other school-related matters. A full chronology of the Appellant s FOI/EIR requests will be provided with the bundle for this appeal. 16. The instant request relates to the Council s 20mph pilot in various areas of Whitchurch, Hampshire, where the Appellant lives. The request listed six different questions. The request was the third on this particular topic; the previous two requests were made on 28 th January 2013 and 11 th June 2013 respectively. In its response dated 14 th June 2013 to the Appellant s second request, which provided the information sought, the Appellant was warned that any further requests by him on the 20mph project would be considered as manifestly unreasonable by the Council. 17. The DN records the Commissioner s approach to determining whether section 12(4)(b) was properly applied, by reference to the concepts of proportionality and justification and the public interest test, and in considering all the circumstances of the case per Dransfield. 18. The DN records the arguments put forward by the Council and those of the Appellant. These are considered under several headings, including: disproportionate or unjustified level of disruption, irritation or distress; unreasonable persistence; purpose and value of the request; and the public interest test. The Commissioner held that the request was manifestly unreasonable. 19. The DN was issued on 6 th October 2014, concluding that the request was manifestly unreasonable, and that the public interest test weighed in favour of preventing further public resources being diverted to respond to the Appellant s request. The DN 5

6 therefore upheld the Council s refusal to respond to the request by virtue of section 12(4)(b) and 12(1)(b) EIR. The Notice of Appeal 20. The Commissioner believes that the grounds of appeal may be summarised as follows: i) The request is proportionate, justified and for a serious, high-value purpose; ii) The Commissioner failed to afford sufficient weight to the Appellant s complaints or to consult further with the Appellant after receiving responses from the Council; iii) The Commissioner erred in concluding that the requests were manifestly unreasonable under section 12(4)(b) and 12(1)(b) EIR. The Commissioner s response to the Grounds of Appeal 21. Generally, the Commissioner relies on the Decision Notice as setting out his findings and the reasons for those findings. The Commissioner nevertheless makes the following observations in respect of the Appellant s grounds of appeal. Proportionality, justification, motive and value 22. The Commissioner accepts that road safety, and a 20mph pilot scheme, is a matter of public importance and interest. However, as required by Dransfield, the Appellant s request has to be viewed in light of the full circumstances in which it is made. The burden on the public authority and its staff 6

7 23. The instant request forms part of a long line of 33 requests in just over a four-year period. These requests do not simply seek one piece of information, but frequently ask for at least five or six matters to be responded to. The Council estimated that the instant request would have taken 10 hours of staff time to answer. One request in 2011 contained fourteen separate points. It is axiomatic that this places a vast administrative burden upon the Council. This is in addition to the contact that the Appellant has with Council officers, and over 20 business as usual requests made by him over the same period. 24. Although not all of these requests relate to road safety matters, a large proportion of them do, including the vast majority of the requests since April 2012 (11 out of 14). 25. In Dransfield, the Upper Tribunal further concluded that the period of time over which requests are made may be significant a long history of requests e.g. over several years may make what would otherwise be taken in isolation, an entirely reasonable request, wholly unreasonable in light of the anticipated present and future burden on the public authority ( 33). The Commissioner disputes that the instant request is entirely reasonable, but nevertheless submits that this passage is highly relevant to the instant case. 26. Given the history of requests and responses generating additional requests, the Commissioner considers that the Council reasonably concluded that answering the instant request would lead to further requests, and consequently to an unjustified burden on Council resources. This is particularly so given that the Council had already answered the Appellant s two previous requests on the same topic. The Upper Tribunal in Dransfield acknowledged that the future burden must also be considered, in terms of whether the history of the previous course of dealings demonstrated a 7

8 high likelihood that, if the public authority had responded in the normal way to the request, it would have faced a barrage of further correspondence and requests ( 70). 27. Further, the six matters raised by the Appellant in the instant request would have been difficult and/or time-consuming to provide, particularly all correspondence and comments relating to the reinstatement of a particular neighbourhood into the scheme, and theoretical timeframes for implementation which the Council may not even have yet determined for itself. The Appellant speculatively claims that the information requested was easily to hand for the Council, which, given the 10-hour time estimate to meet the request, was evidently not the case. 28. The burden on the authority and frequent requests indicators of vexatiousness in the Commissioner s Guidance are thereby satisfied. Motive, and value or serious purpose 29. The nature of the information requested by the Appellant is very detailed, minutiae about the operation of the Council s 20mph pilot scheme, the rationale for particular decisions taken in respect of it and future plans for it. Although the Appellant states that the Council has said that public perception of the scheme is benchmark for its success, that does not entitle the Appellant to expect the Council to justify to him every decision taken in respect of it. The level of detail sought by the Appellant is, the Commissioner submits, excessive and disproportionate in the circumstances, and goes beyond what the Appellant needs to participate meaningfully in consultations regarding the scheme. 8

9 30. The Appellant has stated that he is supportive of the 20mph scheme and therefore his wishes are broadly aligned with those of the Council. The Appellant seems, however, to have, strong views about the way the pilot scheme should operate, and the motive for the request appears largely to be an attempt to get the Council to conduct the pilot scheme in the manner in which the Appellant subjectively believes it ought to be conducted. Per Dransfield ( 38), value is to be assessed objectively in terms of the public interest, not subjectively. This subjective underpinning to the request, in the Commissioner s view, further diminishes its value. 31. Some parts of the information requested are of questionable value, such as the number of people who signed a petition and when it was submitted to the Council, which could conceivably be more easily obtained from the organisers of the petition. In the Commissioner s view, this is an indication that the request, seen in the context of the 32 others since 2009, reflects a certain tendency to request information from the Council that is not always necessary or of the high value that the Appellant claims it to be. 32. The Appellant argues that his intention to share the information obtained more widely through his website and with other public officials is a strong justification for the request. This public information and campaigning role is one which the Appellant has adopted for himself, and although admirable, it does not place the Appellant in a unique position so as to justify the request. 33. Should councillors or the Police Commissioner wish for further information on the 20mph scheme or to raise issues with the Council about it, there are channels available for them to do so. They do not rely on the Appellant s request to obtain this information. Similarly, the Appellant s website contains information relating to 9

10 numerous local issues, and it does not follow that a certain number of hits per day means that local people are visiting it solely or primarily to receive updates on the 20mph pilot scheme that is otherwise unavailable to them. 34. In finding the Appellant s request to be vexatious in Dransfield, the court noted at 71 that [t]he file shows beyond any shadow of a doubt that Mr Dransfield regards himself as a lone prophet, a man with a mission to expose the alleged failings of Devon CC in the field of health and safety. The Commissioner submits that similarly, the evidence portrays the Appellant as a man who regards himself as a vital communication hub to the people of Whitchurch, and as an invaluable exposer of wrongdoings and inefficiencies by the County Council. It is seemingly this view of himself and his public role that, to the Appellant s mind, serve to justify his requests to the Council. This does not provide adequate justification for the instant request in the Commissioner s view. 35. The Upper Tribunal commented at 35 that section 14 FOIA, and by analogy, regulation 12 EIR, serves the legitimate public interest in public authorities not being exposed to irresponsible use of FOIA, especially by repeat requesters whose inquiries may represent an undue and disproportionate burden on scarce public resources. The Commissioner submits that this request forms part of a prolonged endeavour by the Appellant to use the FOI and EIR regime to seek to exert considerable influence over what the Council does and how it does it, and that consequently it represents an irresponsible use of the regime. 36. In view of all the circumstances above, the Commissioner maintains that the request is neither proportionate nor adequately justified. It fits the description of the disproportionate effort indicator of vexatiousness in the Commissioner s Guidance 10

11 as a request relating to a relatively trivial matter and one whereby the Council would have to expend a disproportionate amount of resources in order to meet it. Harassment, irritation and distress 37. Although courteous, there is little generosity of spirit in the Appellant s communications and requests to the Council and they are often pestering and impatient in tone. Every missed deadline or failure to do something exactly as it would be done in an ideal world, rather than at a time of scarce resources, is seized upon and used to feed further requests and communication. In addition to the FOI/EIR and business as usual requests, the Council estimates that one part of the Environment team alone receives two further contacts by the Appellant per month. In total, therefore, it would appear the Appellant is in touch with Environment team staff approximately once a week. This, the Commissioner believes, places an unpleasant personal burden on the staff dealing with the Appellant s frequent requests that is disproportionate and unjustified in the circumstances. Insufficient weight 38. The Appellant argues that the Commissioner failed to pay sufficient attention to the following: a) The Council has only published information on the 20mph pilot once; b) The Council has changed the scheme several times over the past 15 months; c) The Council received a petition by a former town councillor and Mayor after the Council changed the scheme; 11

12 d) Each of the Appellant s FOI, including the instant request, were directly related to these changes; e) Duplicate information has only been requested once by the Appellant. 39. The Commissioner submits that each of these factors was given adequate consideration and weight in the context of all the other circumstances of the case which Dransfield requires. The Appellant clearly cares greatly about his local area, but appears to have very fixed ideas about how local issues should be dealt with and how the Council should operate. There is perhaps a misapprehension that the Appellant is automatically entitled to information from the Council whenever something happens, or does not happen, which he considers important. 40. Further, from the Appellant s grounds of appeal, it seems almost as if he expects the Council to publish and consult on every aspect of the work it undertakes in his locality. In the Commissioner s view, such an expectation of a public authority is entirely impractical, and a request founded on such an expectation manifestly unreasonable. 41. There is nothing in the factors listed in paragraph 35 above which alters the Commissioner s position that the instant request, viewed in its wider context, was manifestly unreasonable and that the public interest was in favour of non-disclosure of the information. 42. The Appellant further complains that he was not provided with an opportunity to comment on the further information obtained by the Commissioner from the Council in the course of its investigation. The Commissioner submits that its investigations are not an iterative process whereby it is obliged to pass information back to a requester 12

13 and invite additional input as an investigation proceeds. The Appellant had sufficient opportunity to put forward any arguments and reasons supporting his complaint to the Commissioner, which he utilised. In any event, the Appellant will be able to advance any additional evidence and/or argument to the Tribunal in his submissions. Consequently, it is submitted that this is not a valid ground of appeal. The request was manifestly unreasonable 43. The Commissioner believes that in this case, considering the test set out in Dransfield for vexatiousness/manifest unreasonableness means weighing the purpose and value of the request against the evidence about the impact on the authority. 44. In light of all the evidence, the Commissioner submits that the purpose of value or the request is limited, and is outweighed by the impact on the Council, its staff and resources of having to deal with an average of eight, normally lengthy, requests per year from the Appellant, in addition to other requests and correspondence. 45. Consequently, and for the reasons outlined above, the Commissioner submits that the instant request was manifestly unreasonable, being a manifestly unjustified, inappropriate or improper use of a formal procedure. 46. As stated in the DN, the Commissioner has fully considered the public interest test in this case, and considers that the burden placed on the Council by the Appellant s requests outweighs the presumption in favour of disclosure in these circumstances due to the limited value of the request and the resources involved in responding to it. 13

14 Conclusion 47. The Commissioner invites the Tribunal to conclude that the requests were manifestly unreasonable and that regulations 12(4)(b) and 12(1)(b) EIR have been correctly applied. 48. The Tribunal is invited to dismiss the appeal. FRAN ALDSON Chambers of Stephen Hockman QC Six Pump Court Temple London EC4Y 7AR Dated this 1 st December 2014 Name and address of Respondent / Address for service:- Michele Voznick Information Commissioner s Office Bessant Drive Kew Surrey TW9 4DU michele.voznick@ico.org.uk 14