Sooner than encourage and protect the very longstanding character and reputation of Gurkha soldiers who’ve made the ultimate sacrifice or put their lives on the line to serve the United Kingdom, the Ministry of Defence – in concert with the Information Commissioner’s Office – have chosen to snub them, attack them and to block access to their full service pensions

This ICO decision notice has branded the applicant working on behalf of veteran Gurkha soldiers as ‘vexatious’ and supports the Ministry of Defence’s outrageous contention that it would be preferable not to have their career bureaucrats working an extra 6.6 working days in order to satisfy the applicant’s request, thereby acknowledging the ongoing detriment and making progress towards rewarding Gurkha soldiers with the pension they expected in return for their selfless service to this country.


This official conduct is in our opinion thoroughly cruel, cowardly and despicable.


Reference: FS50628635

Freedom of Information Act 2000
Decision notice
Date: 1 February 2017
Public Authority: Ministry of Defence
Address: Whitehall
London
SW1A 2HB
Decision (including any steps ordered)

The complainant requested information from the Ministry of Defence
(MOD) on the Gurkha Offer to Transfer (GOTT). He also requested a
copy of a letter the MOD intended to send to the complainant, which did
not reach the complainant due to an error by the MOD.

The MOD provided three letters in response to the request based on its
interpretation of the scope of the request. The complainant informed the
MOD that this interpretation was not correct, and that the scope was
much wider. The MOD refused the request under section 14(1) of the
Freedom of Information Act 2000 (the Act) because, based upon the
wider interpretation of the request, it considered it to be vexatious.

The Commissioner’s decision is that the MOD is entitled to refuse the
request under section 14(1) of the Act. No steps are required.
Request and response

On 7 March 2016, the complainant wrote to the MOD and requested
information in the following terms:
“You may recall that I wrote to you on 4th January 2016 to draw your
attention to various anomalies in relation to the implementation of the
Gurkha Offer to Transfer (GOTT) that have adversely affected the
Gurkhas who transferred their pensions and to ask you to take the
necessary corrective measures. I have not received any response from
you, which makes me wonder if your reply was sent by letter. Post to
the Philippines tends to be slow and unreliable.


Please provide under the Freedom of Information Act 2000 a copy of
your reply to my letter dated 4 January 2016 and copies of any
correspondence that has been generated by your Branch on this subject
since then.”

The MOD responded on the same day. It stated clearly that it
interpreted the phrase “any correspondence that has been generated by
your Branch on this subject since then” to mean correspondence
intended for the complainant. Based on this interpretation it provided
three pieces of correspondence.

On 18 March 2016 the complainant responded and confirmed that he
meant all correspondence on the subject, regardless of the recipient,
and both internal and external.

The MOD responded on 11 May 2016 and refused the request under
section 14(1) of the Act because it deemed the request vexatious. The
MOD made it clear that this was in part due to the scope of the request
being confirmed as much wider than previously appreciated.

The MOD issued its internal review on 22 July 2016. The review upheld
the section 14(1) refusal, but also made some other points. Firstly, it
stated that the correspondence provided in its response of 7 March 2016
should have been refused under section 40(1) where the information
was the complainant’s own personal data, and section 40(2) where it
was the personal data of third parties. In making these points the MOD
apologised for the breach of the complainant’s data protection rights
when it provided correspondence on 7 March 2016. Secondly, the MOD
identified some documents relevant to the scope of the request that
were available online. The MOD provided the location of these
documents, and stated that this was in effect a refusal under section 21
of the Act, as the information was already accessible to the complainant.
Scope of the case

The complainant contacted the Commissioner to complain about the way
his request for information had been handled. Specifically, that the MOD
refused his request under section 14(1) of the Act.

The Commissioner considers the scope of the case to be whether the
complainant’s request is vexatious as per section 14(1) of the Act.
Reasons for decision

Section 1(1) of the Act states:


“(1) Any person making a request for information to a public authority is
entitled –
(a) to be informed in writing by the public authority whether it
holds information of the description specified in the request, and
(b) if that is the case, to have that information communicated to
him.”

Section 14(1) of the Act states:
“(1) Section 1(1) does not oblige a public authority to comply with a
request for information if the request is vexatious.”

The term “vexatious” is not defined in the Act. The Upper Tribunal
(Information Rights) considered the issue of vexatious requests in the
case of the Information Commissioner v Devon CC & Dransfield.
1 The
Tribunal commented that “vexatious” could be interpreted as the
“manifestly unjustified, inappropriate or improper use of a formal
procedure”. The Tribunal’s definition clearly establishes that the
concepts of proportionality and justification are relevant to any
consideration of whether a request is vexatious.

In the Dransfield case, the Upper Tribunal also found it instructive to
assess the question of whether a request is truly vexatious by
considering four broad issues: (1) the burden imposed by the request
(on the public authority and its staff); (2) the motive of the requester;
(3) the value or serious purpose of the request and (4) harassment or
distress of and to staff.

The Upper Tribunal did, however, also caution that these considerations
were not meant to be exhaustive. It stressed that the:
“[I]mportance 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” (paragraph 45).

In the Commissioner’s view, this means that whether a request is
vexatious is left open to consideration based on the circumstances of the
case. Where a situation presents itself which does not fit neatly with the

1 GIA/3037/2011 – http://www.osscsc.gov.uk/Aspx/view.aspx?id=3680


Commissioner’s guidance – or the factors the Tribunal looked at in its
case – it would not necessarily mean the request was not vexatious.
Complainant’s view

The complainant is well known to the MOD, as he is an ‘Assisting
Officer’2 to 30 Gurkha veterans attempting to redress individual
grievances through the Armed Force Pension Scheme’s (AFPS) Internal
Dispute Resolution Procedure (IDRP). When the complainant requested
an internal review he drew the MOD’s attention to the definition of an
Assisting Officer:
“Role The officer appointed to act as the AO has a key role in helping
to achieve a fair resolution of the complaint… with the minimum of
delay. Consequently AOs should be selected with care to ensure that
they have the appropriate knowledge and experience to gain the trust
and respect of complainants. The AO has the following important
duties:
a. Help a complainant prepare the service complaint form in a clear
concise and unambiguous manner. This will require detailed
preparation and thorough scrutiny.
b. Help clarify the issues at the root of the complaint and the nature
of the redress sought.”

The complainant argued that his motive for the request was a result of
his role as an Assisting Officer. He is working to ensure that the
veterans he represents receive a fair deal from their pension scheme,
and the request for information was part of his work.

Similarly, the complainant argued that the request has a serious
purpose. From his submissions to the Commissioner he made it
abundantly clear that the GOTT scheme left a number of Gurkha
veterans much worse off financially than they would have been if they
had not transferred their pension scheme. The purpose of the request is
not to further any personal grievance, but to ensure that individuals who
provided a valued service to the United Kingdom received just
remuneration for their efforts.

2 As per https://www.gov.uk/government/publications/jsp-831-redress-ofindividual-grievances-service-complaints


MOD’s view

The MOD’s submissions to the Commissioner stated that the “any
correspondence” part of the complainant’s request encompassed at least
144 documents. These documents contain information that is exempt
under the Act, and so would require staff to go through the documents
to ensure that it was redacted. The MOD stated that the exemptions
engaged would be:
• Section 35 (information relating to the formulation or development
of government policy).
• Section 36 (prejudice of effective conduct of public affairs).
• Section 40 (personal information).
• Section 42 (legal professional privilege).

The MOD argued that there were only a few relevant subject matter
experts for this matter, and that in order to comply with the request it
would require this small group to spend a large amount of time
reviewing the requested information and making any necessary
redactions. The MOD concluded that this would put an unwarranted
strain upon the resources of a small number of employees. The MOD’s
internal review estimated that to comply with the request would take
6.6 working days.

The MOD referred the Commissioner to its response to the complainant
of 2 March 2016 (which was sent in response to the complainant’s letter
of 4 January 2016). The letter replies to the complainant on a number of
issues, and the MOD stated that this required the involvement of a widerange of personnel and took up a considerable amount of time. The
complainant’s letter had gone to 23 pages, and had 29 attachments to
it. The MOD then forwarded this round to the relevant business units for
comment in order that the letter of 2 March 2016 could be drafted. In
the MOD’s view, it has spent a substantial amount of time addressing
the complainant’s concerns, and that it would be disproportionate to
spend an additional 6.6 working days complying with the complainant’s
request.

The MOD stated that the catch-all wording of the request for “all
correspondence” meant that it encompassed the information collated for
a subject access request (SAR) under the Data Protection Act 1998
(DPA) submitted by the complainant on behalf of a Gurkha he
represents. This meant that in order for the MOD to legally oblige with
both requests it would have to produce two responses for the same
information: one intended for the SAR, and one for complainant’s the
request under the Act.

In addition to this the complainant had also submitted a further three
requests in the two months prior to the one that forms the basis of this
appeal, as well as one in December 2015; all of which were concerned
about the same subject. The MOD contended that the most recent
request would encompass the documents within those other requests,
as well as the documents that showed how the requests had been
handled. In the MOD’s view, this showed that the complainant had
submitted an overlapping request that was making it revisit issues that
had already been addressed. This is seen by the MOD as an improper
use of the formal procedure afforded under the Act.

The MOD informed the Commissioner that the subject of GOTT had been
judicially reviewed in 2008 and 2009, and both times found to be fair
and reasonable. The MOD also informed the Commissioner that the
European Court of Human Rights had found that the pension changes
were not discriminatory.3 The MOD argued that the subject was
important to those concerned, but that it had been addressed through
legal challenge and found to be fair. There was not a large public
interest in allowing a substantial diversion of resources for such a
subject.
Commissioner’s decision

The Commissioner’s view is that the complainant certainly has
commendable intentions with his voluntary assistance to the Gurkha
veterans, and it is evident that he has been able to achieve successful
redress for some individuals from the MOD’s IDRP. Whilst the matter
might not affect a large section of the country, it is no doubt of
significant value to those whom it does. This shows that whilst he is in a
protracted engagement with the MOD it is not one that is wholly
unreasonable, but rather one that is improving the financial position of
some veterans.

However, the Dransfield decision made it clear that the purpose of the
vexatious exemption is the protection of public resources where a
request may be seen as an unwarranted burden upon a public authority.
Whilst the complainant is acting as the Assisting Officer for the Gurkha
veterans, the Act establishes a limit for what can be requested in order
to help the MOD protect its staff from burdensome requests. The MOD’s
submissions show that a small group of its staff would have to devote a
significant amount of time to ensure that all exempt information is redacted, and that these members of staff have already devoted large amounts of time to this subject already.

3 http://www.humanrightseurope.org/2016/09/united-kingdom-gurkha-soldiers-lose-pension-human-rights-challenge/


The Commissioner has also taken into account the context and history of
the request, in particular the assistance provided to the complainant by
the MOD outside of the Act (described at paragraph 22), together with
its compliance with the three FOI requests on the same topic being
submitted in the period of three months prior to the request considered
in this Notice (described at paragraph 24). In this context the
Commissioner’s view is that the MOD is entitled to refuse the request in
order to prevent this disproportionate use of its resources.

When the complainant requested an internal review from the MOD he
queried the need for it to spend so much time redacting exempt
information. His argument is that he was acting an Assisting Officer for
the Gurkhas, and also during his time as a commanding officer in a
Gurkha regiment he never received a redacted document. The
Commissioner can sympathise with these arguments but they are not
applicable in this instance. This is because a disclosure under the
provisions of the Act is a disclosure to the world, so any information the
MOD would disclose to the complainant must also be disclosed to any
other individual who requested the information.

The Commissioner wishes to make it clear that she does not consider
that the complainant is now forbidden from making further requests, but
she hopes that it is apparent that the wording of the request is crucial in
this decision. She notes that the MOD provided the complainant with
advice and assistance in its internal review to help the complainant
refine the scope of his request so that it would not represent a
significant burden to its resources.

The MOD’s initial interpretation of the complainant’s request was
complied with in a prompt manner, it was only when the complainant
informed the MOD that the request of 7 March 2016 was intended as a
catch-all for any correspondence on the subject that the burden because
disproportionate. This demonstrates to the Commissioner that the MOD
is being reasonable in its dealings with the complainant in relation to his
FOI requests.

The Act is designed to provide individuals with access to specific
recorded information held in a public authority’s records. There is no
disputing the value of the complainant’s work, but it would be advisable
to make more specific requests in order to avoid placing too great a
burden upon the MOD. Therefore, for the reasons set out above, the
complainant’s request of 7 March 2016 is vexatious as per section 14(1).
No steps are required.


Right of appeal

Either party has the right to appeal against this decision notice to the
First-tier Tribunal (Information Rights). Information about the appeals
process may be obtained from:
First-tier Tribunal (Information Rights)
GRC & GRP Tribunals,
PO Box 9300,
LEICESTER,
LE1 8DJ
Tel: 0300 123 4504
Fax: 0870 739 5836
Email: GRC@hmcts.gsi.gov.uk
Website: http://www.justice.gov.uk/tribunals/general-regulatory-chamber

If you wish to appeal against a decision notice, you can obtain
information on how to appeal along with the relevant forms from the
Information Tribunal website.

Any Notice of Appeal should be served on the Tribunal within 28
(calendar) days of the date on which this decision notice is sent.
Signed ………………………………………………
Jonathan Slee
Senior Case Officer
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5A


Gurkha Regiment Support Group.


Dear Sirs,

Please see the following MOD/ICO decision notice which, in essence, has allowed the MOD to cheat the Gurkhas from their Entitled Pension.

Please see para 13 and 14 and I would advise you this ICO Decision was designed by the ICO to facilitate such fraud as the Gurkha Pension Fraud. My father was a Chindit in Burma in the 2WW and served alongside the Gurkha Soldiers and I am disgusted my family name has been used as a Court Precedent to cheat the Gurkha Soldiers.

This following decision Notice from the ICO is irrefutable proof the ICO have acted in concert to pervert the Course of Justice. This decision was upheld by the Court of Appeal via EWCA 454/2018 in which the CoA are in essence claiming the Gurkha Pension Situation is NOT SERIOUS PURPOSE, NOT IN THE PUBLIC INTEREST AND OF NO VALUE TO THE FOIA REQUESTER.

Please don’t hesitate to come back to me if I can assist the Gurkha Regiment with their Pension Fraud Issue. In layman’s language the Dransfield Court Precedent was reached in complicity by the MOD and ICO to circumvent the FOIA 2000 which is a serious breach of section 77 of the said act. The original Dransfield Vexatious Court Precedent was reached under BAD LAW and complicity by the ICO and Devon County Council.

The Upper Tribunal and Court of Appeal were complicit to obtain the Dransfield Vexatious Court Precedent.

With thanks,

Yours sincerely,


Alan M Dransfield, FOIA Campaigner and Social Watchdog.

https://ico.org.uk/media/action-weve-taken/decision-notices/2017/2013416/fs50628635.pdf


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 Uncategorized. Bookmark the permalink.

2 Responses to Sooner than encourage and protect the very longstanding character and reputation of Gurkha soldiers who’ve made the ultimate sacrifice or put their lives on the line to serve the United Kingdom, the Ministry of Defence – in concert with the Information Commissioner’s Office – have chosen to snub them, attack them and to block access to their full service pensions

  1. Michael Grange says:

    Wondering if this was appealed?

    Like

  2. vexatiousking says:

    Sorry Michael,I don’t know if this decision was appealed. You are a liberty to submit a FOIA to the ICO. I can’t do it because ALL my requests are deemed Vexatious.

    Like

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