Freedom of Information ~ How to overturn a “Vexatious request” rebuttal by a data controller

The following email, sent to the ICO, helped to win the day when Surjit Tour, the legal head of long term basket case, Wirral Council, tried to brand me as “obsessive” and “haranguing”.  His department had also labelled three of my FoI requests “vexatious” – which they thought would give them the ideal excuse to withhold the information.

Request 1

Request 2

Request 3

Your circumstances may not match mine, but if you’ve been branded in this way by similarly irresponsible data controllers, you may find the following information helpful.  It draws on the latest updated ICO guidance and I’m reproducing it here to help you collect your thoughts, turn the tables and begin taking the fight to them in a businesslike way, by using the ‘tools’ that are available:

From: Paul C
Sent: 26 September 2013 23:57
To: ‘casework@ico.org.uk’
Subject: RE: ICO Complaint FS50502536[Ref. FS50502536]

IMPORTANT

FAO Daniel Perry

Further information in defence of my position regarding the case outlined in your email below

Dear Mr  Perry,

Further information has entered the public domain which raises yet more questions about Wirral Council’s approach to the provision of public information.

You may be familiar with the finer detail as it originates from your own organisation and refers to the ICO announcement of a regulatory response to the findings following the 3 month monitoring period of Wirral Council (their second one), undertaken between January and March 2013.

The ICO stated that despite a small improvement in response times, 75% of replies still breached the 20 working day time limit during the monitoring period.  The ICO felt that it did not warrant enforcement action on this occasion, but also that they had no option but to require the council to sign an undertaking stating the need to step up their commitment to the legal obligations laid out under the FOI Act.

Please add this further evidence of ongoing failure to the extensive information that I’ve provided to your organisation over the last few months, since the struggling data controller labelled my David Garry and Bill Norman FOI requests as “vexatious”,

As my deadline for providing further information has not yet been reached (4th October 2013), and after once again examining the ICO guidance on Vexatious Requests

http://www.ico.org.uk/for_organisations/guidance_index/~/media/documents/library/Freedom_of_Information/Detailed_specialist_guides/dealing-with-vexatious-requests.ashx

… I would like to set out some further thoughts on these issues, as follows.  Please accept the following information in conjunction with the evidence and information I have previously provided:

With regard to page 26 of the ICO guidance, under the heading, “Allow the requester an opportunity to change their behaviour”, I’ve noticed that points 104 and 105 have not been explored or followed by the local authority.  Point 106 then advises the data controller to “focus on the impact of the requests rather than the behaviour of the requester himself”. “Labelling a requester with terms such as ‘obsessive’, ‘unreasonable’ or ‘aggressive’ may only serve to worsen relations….”, however in this case, I was characterised as “obsessive” by Wirral Council solicitor Rosemary Lyon, as follows:

“I consider that the volume and frequency of correspondence received from yourself concerning
compromise agreements at this council can be fairly characterised as obsessive”

According to the ICO guidance, labels such as the above risk worsening relations between the respective parties and risk causing further disputes.

As Wirral Council had not followed the carefully laid out ICO advice under “Allow the requester an opportunity to change their behaviour”, and this being their second time of calling upon Section 14 with regard to my FoI requests, I believe they were incautious, inappropriate and possibly going against the spirit of the Act by resorting to the Section 14 “vexatious request” exemption.

Section 108 advises the authority to refer the requester to the ICO’s ‘for the public’ webpages.  But once again, Wirral Council did not follow this advice, prior to resorting to Section 14 of the Act.

Wirral Council did not issue their refusal notice within 20 working days.  The request was lodged in October 2012.  The council’s Section 14 exemption arrived 8 months later in June 2013, following an internal review.  One would have assumed that the request would have been regarded as vexatious before the internal review was carried out (which was also not done within 20 working days).

On viewing point 126, it’s clear that having failed to keep to the 20 working day time limit and to answer the request in time, Wirral Council are therefore not permitted to take into account anything that happens within the period in which it is dealing with the request.  I trust you will therefore discard any material submitted by Wirral Council that falls within this period.

Under Justified Persistence on page 35, the following statement appears in response to a request characterised by the authority as in part ‘obsessive’:

“…The dogged pursuit of an investigation should not lightly be characterised as an obsessive campaign of harassment.”

I would finish this email by saying that my pursuit of important information has been dogged and persistent.  It would be a mistake to characterise this as ‘obsessive’.  I believe the front page headline, based on my research on compromise agreements and ‘confidentiality clauses’, in The Daily Telegraph of April 3rd 2013 speaks for itself.  I made 345 Freedom of Information requests in order to highlight a subject which has now taken on national importance, has been picked up by the National Audit Office and which is the matter under discussion in a forthcoming Public Accounts Committee in September 2013.

To have one of my 400+ FoI requests successfully labelled as “vexatious” by a council which has been forced to admit that it abused learning disabled people; was found by an external investigator to have corporately bullied a whistleblower, and which due to its very poor performance, was the only council in the land to be monitored by the ICO (for the 2nd time) between January and March this year would be perplexing to say the least.

Please acknowledge receipt of this email and please confirm that you are accepting this information and adding it to my defence,

Best regards,

Paul Cardin

This wouldn’t be enough on its own.  More to follow…

13th February 2014

My appeal against “vexatious request” number 3 is currently underway.  This has come about a lot quicker than I expected.  I’ve been asked to supply my thoughts and here they are:

From: Paul C
Sent: 10 February 2014 16:13
To: ‘casework@ico.org.uk’
Subject: RE: ICO Case FS50516384[Ref. FS50516384]

Dear Mr Perry,

Thank you for your email regarding the above case, received this morning.

Here is Wirral Council’s response to my request, dated 22nd April 2013:

“The Council considers the request vexatious and therefore it is refused under s14 (1) of the Freedom of Information Act 2000. The tone and substance of the request means that it implicitly accuses Council officers involved in supplying a reply to your previous requests of bad faith and lying.  The context of your request has been taken into account in reaching this decision.  This decision has been reached having particular regard to your phrase “In light of the difficulty caused by this, please explain how you managed to respond properly with ‘accurate’ figures for the following two historical requests”. That request for an explanation is not itself a request for information but contributes to the vexatious tenor of your request.

You go on to expressly suggest that the Council raise questions with its Accounts Department and look for “suspiciously large public money payments that have been made to persons departing in controversial circumstances.” That again adopts a tone that is considered by the Council to be one that means the requests that you make are designed to cause annoyance and have the effect of harassing officers, and are manifestly unreasonable.”

I believe I may already have mentioned this on the WhatDoTheyKnow website, but I think it’s worth repeating.  I am questioning the competence of the council.  There is plenty of publicly available evidence to suggest that there is a level of unaddressed incompetence and this has also been apparent in the council’s particularly poor FoI performance (Monitored twice by the ICO (the only UK council to be monitored on the second occasion); mentioned by the Information Commissioner himself before a parliamentary committee as a place he’d “like to sort out”; the CEO being made to sign a recent undertaking to improve his organisation’s FoI performance in the future).

Also, when separately surveying a total of 345 English councils on the same subject of compromise agreements in 2011, I made a very particular point to many of them, asking them to look for suspiciously large payments made to departing employees.  This became necessary because the councils had responded that the data was not stored centrally.  In order to assist, I suggested that they approached their Accounts Departments for the information.

None of the 345 councils responded with a “vexatious” request rebuttal.  As Wirral Council have not been following the carefully laid out ICO advice under “Allow the requester an opportunity to change their behaviour”, and this being their third time of calling upon Section 14 with regard to my FoI requests, I believe they have been incautious, inappropriate and possibly going against the spirit of the Act by resorting to the Section 14 “vexatious request” exemption.

It is particularly perplexing that this council should suggest that the problem lies with my request(s).  Especially in light of the fact that another two of its “vexatious” request rebuttals have now been overturned quoting the relevant guidance by ICO case officers.

I trust that you will take this and previous information I’ve sent (some of it attached for ease of reference) into account in your deliberations,

Best regards,

Paul Cardin

From: Paul C
Sent: 11 February 2014 10:17
To: ‘casework@ico.org.uk’
Subject: FW: ICO Case FS50516384[Ref. FS50516384]

Dear Mr Perry,

To support my contention that Wirral Council has (or did have) a level of unaddressed incompetence, let me remind you about the “high priority fundamental risk” that was raised by Chief Internal Auditor Mr David Garry regarding the issue of “numbers of compromise agreements”, which happens to be the subject matter of my third “vexatious” FoI request.

Here is a link to the report by Wirral employees Mr Garry and Mr Niblock.  Please go to Appendix 1 :

http://democracy.wirral.gov.uk/documents/s50006042/Internal%20Audit%20Update%20Report.pdf

I believe the conclusions arrived at speak for themselves, in that the council’s own system for recording, reporting and indeed scrutinising compromise agreements was less than satisfactory.

Flowing from this it’s my assertion that the council was in fact incompetent and it therefore cannot be a case of [accusing the council of] “bad faith and lying” on my part,

Best regards,

Paul Cardin

From: casework@ico.org.uk [mailto:casework@ico.org.uk]
Sent: 10 February 2014 10:56
To: Paul C
Subject: ICO Case FS50516384[Ref. FS50516384]

 PROTECT

10 February 2014

Case Reference Number FS50516384

Dear Mr Cardin

Please find attached a letter regarding your complaint to the ICO.

Yours sincerely

Daniel Perry
Case Officer – Complaints Resolution

About Wirral In It Together

Campaigner for open government. Wants senior public servants to be honest and courageous. It IS possible!
This entry was posted in FoI Requests, General. Bookmark the permalink.

7 Responses to Freedom of Information ~ How to overturn a “Vexatious request” rebuttal by a data controller

  1. Jonathan Hardaker says:

    Paul I read your blog on a regular basis as you are probably aware & in conjunction with Wirral leaks & John Brace’s blog on the antics of Wirral councillor’s & their officers who appear to have no shame & are evasive to a point where they don’t know & don’t care what the public know as they appear to be above the law’
    My only hope is that one day they will answer for their sins & be exposed for the abuse & gross mismanagement of this once great borough.
    As it is they are a laughing stock

  2. Thanks for reading Jon. I think things will heat up soon, what with “Wirralgate” surely about to blow sky high AND the investiture of a mayor who presided, as council leader, over many long years of callous bullying, mobbing, cover up, deceit, denial, obfuscation, minimisation, abuse and much, much more.

  3. maureen says:

    Since this article there has been the Dransfield case, and the ICO guidance appears to have been taken down. Can you send a copy of the ‘old’ guidance ?

  4. Sorry, I don’t have a copy. But the guidance I used was actually the NEW guidance that the ICO decided to write after the Dransfield case. Is it the old guidance you wanted pre-Dransfield or the new guidance? Thanks.

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