Freedom of Information Act Section 14 (1) Refusal Notice - Vexatious Requests

Transcription

1 Legal Services to Barnet and Harrow Councils Director Hugh Peart Paul Boakes By only to: 6 November 2014 Our ref: SJD/HRWC-CF01-EC Your ref: Dear Mr Boakes Freedom of Information Act Section 14 (1) Refusal Notice - Vexatious Requests I refer to you requests for information under the Freedom of Information Act 2000 (the Act) received by the council on 4 th, 5 th, 6 th, 7 th, 9 th 12 th (x2), 15 th and 18 th (x2) October 2014, ten requests in total (Requests) that our icasework records show we have received from you in October this year. Details of your Requests are set out in the attached spreadsheet (numbers 83 to 92) and below. Refusal Decision - Vexatious Requests - Section 14 (1) of the Act We have decided that these Requests are vexatious under section 14 (1) of the Act because we are satisfied that complying with your Requests will impose a disproportionate and unjustified burden on the council s resources and cause disproportionate and unjustified disruption and distraction to and from our main function of providing services to the public in very difficult financial times. Section 14 (1) states that the general right of access to information held by the council does not oblige us to comply with a request for information if the request is vexatious. There is no public interest test to apply, though we have addressed some relevant public interest factors below. History and Context In deciding that your Requests are vexatious we have taken account of the long history of your disparate and unrelated requests to the council over a period of nearly three years. address Harrow Council, Civic Centre, PO Box 2, Station Road, Harrow, HA1 2UH dx Harrow 3 web fax

2 - 2 - We have considered whether a more conciliatory approach could help to resolve the issue before deciding to refuse your Requests as vexatious but we have concluded that this will not work because we have tried this before and we are now faced with answering ten (or eleven) requests from you submitted in less than one month. You know that we issued a section 14 (1) refusal decision in January 2013, upheld on an internal review in March At that time we recorded that we had received 49 disparate and largely unrelated requests from you to the council for information between January and December You complained to the Information Commissioner s Office (ICO) about our refusal and after correspondence and meetings our then Chief Executive decided in June 2013 to continue to answer a reasonable number of requests from you in the future and you withdrew your complaint. The case reference number was FS and the case was closed by the ICO on 26 June Since 1 January 2014 our case records show that we received a further 25 requests from you, with 10 received this month alone. However, it s very important to say that our formal case records (i.e. recorded on our Freedom of Information/Data Protection icasework recording system) do not show all of the requests we have received from you during this time. This is because you do not always, or even usually, submit your requests via our online icasework management system. You often submit requests by writing directly to council officers and councillors and many of these are not therefore formally recorded. As an example, I set out below a number of requests that we know about and which are not recorded on the spreadsheet. It s likely that there are others that we have not captured here. 27 March The Mayor s Office received a call from you about the Mayor s trip to Ghana followed by a detailed request in writing on 28 March June 2014 You wrote to our Director of Customer Services & Business Transformation requesting information about the Council's IT contract with Capita, followed on June 26 with an to our Press Office adding that you d be willing to meet with one of our Press officers at the Civic Centre for a face to face chat, asking that you be given the same accreditation and courtesy that the council extends to the local papers (See further below about this) 24 June You requested a copy of an internal audit report into the suspension of the Head Teacher at Whitchurch First School. You also sent a similar request to the school itself which the council had to advise on, including dealing with a complaint to the ICO. 10 July 2014 In response to the refusal of our Communications Department to answer some of your requests you wrote to an individual in our Communications Department again asking to meet, adding that I'm led to believe that you're following orders from higher up. 28 August 2014 you submitted a detailed request about some Traffic Regulation Orders.

3 - 3-2 September 2014 You wrote to the then Interim Corporate Director of Children and Families making a request about free school meals. 1 October 2014 You made a detailed request directly to a councillor about the expansion of Welldon Park Infant and Nursery School. Therefore it is clear that since our former Chief Executive agreed with you in June last year that you would only make reasonable and proportionate use of the Act to make requests to the council in future, the number of requests you are continuing to make to the council is still disproportionate and unreasonable and is imposing a continuing cost and resource burden and disruption and distraction for the council. Commenting on our original vexatious refusal decision in January 2013, your blog on your iharrow website of 7 February 2014 shows a clear intention to continue to submit requests without any serious regard to the resource and distraction implications for the council: After the mess with Freedom of Information Requests with Harrow Council last year, we backed off, got invited to tea and biscuits with the Chief Exec, and generally cut them some slack for a while. We are aware that under section12 of the Act there is no obligation on the council to comply with a request (or the Requests specifically) where the cost of finding and retrieving the information exceeds the appropriate limit of 450. This is an option for the council here, but even estimating the cost of dealing with these diverse Requests will involve significant distraction and resources and no doubt will lead to further correspondence and further requests in a very short time. Also it will not deal with the underlying issue of you making persistent unconnected requests under the Act to the council without regard to the implications for the council s resources. Also under section 14(2) of the Act, we do not have to comply with a request which is identical, or substantially similar to a previous request submitted by the same individual, unless a reasonable period has elapsed between those requests, but your Requests are for very different information and have no consistent theme to allow us to rely on this exemption from compliance with your Requests. Therefore we have decided that the appropriate and proper response to your recent Requests is to treat them as vexatious. Disproportionate and unjustified burden and disruption Your requests are often very time-consuming and resource intensive to deal with, involving many council officers, often senior officers, our Press office and Legal staff. We cannot quantify exactly the cost to the council of dealing with your requests over the years but there is no doubt that it is wholly unreasonable and disproportionate for one individual. This resource and cost burden and distraction is even more significant in these very constrained fiscal times when the council is having to wrestle with significant budget cuts that are likely to affect jobs and front line services.

4 - 4 - Also, we need to add that where we refuse in whole or in part to provide information relying on an exemption from disclosure under the Act, you invariably ask for an internal review of our decision, and occasionally complain to the ICO as well. This is your right but the fact is that it causes the council further distraction and disruption and imposes an even greater burden on our stretched resources. Also your requests generally over the years, and specifically your recent Requests, amount to a fishing expedition and a scattergun approach to uncover some financial mismanagement or wrong doing at the council even though there is no evidence for this view. Your Requests ask us for information about: Expenditure on memorial restoration and the appointment of the contractor; The cost of some recent improvement works at the Civic Centre; Display energy certificates at council buildings; An historical overspend on works at Whitmore High School in 2009/10; The council s plans to deal with an outbreak of ebola; Credit card spend by officers at the council; Emergency plans for dealing with disasters ; The costs of the West Harrow by-election in February 2013; Sponsorship of the Harrow Heroes awards; Sponsorship of roundabouts; The expansion of Welldon Park Infant and Nursery School. The ongoing volume and frequency of your requests, including your recent Requests, distracts staff from their usual work, imposes a significant administrative burden on the council and therefore puts a strain on our resources and gets in the way of answering other requests and providing services to the public. The emphasis on protecting public authorities resources from unreasonable requests was acknowledged by the Upper Tribunal in the recent case of Information Commissioner vs Devon County Council & Dransfield [2012] UKUT 440 (AAC), (28 January 2013) when it said that the purpose of section 14 is to protect the resources (in the broadest sense of that word) of the public authority from being squandered on disproportionate use of the Freedom of Information Act. Section 14 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 judge went on to say that the context and history of a 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 fact. Our assessment here is that your constant Requests constitute disproportionate and irresponsible use of the Act and to answer them would cause an undue and

5 - 5 - disproportionate burden on our scarce public resources. We have considered the number, breadth, pattern and duration of your previous requests in reaching this conclusion. The ICO also encourages public authorities to consider using section 14 of the Act in any case where they believe the request is disproportionate or unjustified. We are completely satisfied that your Requests are disproportionate and unjustified in the context of your long history of requests to the council. Your recent Requests represent an unjustified, inappropriate and improper use of the Act. Purpose and Value of the Requests While the individual Requests looked at in isolation may have a serious purpose or value, the main purpose behind your Requests is to provide information for the website that you run. Your website s logo is everything that s happening in Harrow and you say that iharrow.com is all about delivering information of interest to people who live or work in the borough. This is an abuse of the spirit of the Act because it is inappropriate, improper and disproportionate use of the Act by one individual causing the council an unjustified level of disruption and distraction. It is unreasonable use of the Act by you to support your iharrow project. Harrow is committed to being open, accountable and transparent and any individual in Harrow, or elsewhere, can make a request for information to the council and we will deal with it under the Act. Your iharrow website is also relevant to your frequent and distracting interactions with our Communications department because you expect the same briefing rights and status that we give official journalists in the borough. This explains the references above to your requests for off the record briefings and allegations that individuals in the department are only following orders from higher up. This distracts from the serious and significant resource implications for the council. The council would respond to your Requests if we thought that our answers would satisfy you and you would not continue to submit further frequent requests. But the history of your requests over the years, your undermining of your previous agreement with our former Chief Executive, and your clear undisguised intention to continue to submit regular requests leads us to conclude that responding to your Requests would be very likely to lead to a significant number of further requests and therefore continue to distract staff and impose a significant and disproportionate administrative and resource burden on the council. Your Requests clearly form part of a wider campaign or pattern of requests that you apparently intend to continue so long as we continue to respond. Conclusion In light of the Commissioner s Guidance and the Upper Tribunal s Decision, taking a holistic common sense approach to the context and history of your requests and your recent Requests, and noting the stated purpose of section 14 of the Act to protect the stretched resources of the council from being squandered on disproportionate, inappropriate and improper use of the Act by a single individual, our decision is to refuse

6 - 6 - to answer your Requests because they are vexatious in the broad sense and meaning of that word. Complying with your Requests will cause the council a disproportionate and unjustified level of disruption and distraction and a similar disproportionate and unjustified strain on our resources. This decision has been discussed with and approved by senior officers at the council, and the Leader of the council has been informed. The decision has been taken after proper consideration of the available options open to the council in the particular circumstances of the Requests. We are committed to openness and transparency and take our responsibilities under the Act seriously. This is evidenced by many examples of good information management practice at the council, including the fact that we have invested in bespoke electronic case management software to improve our handling of requests under the Act (and other information legislation). Also our Information Governance Board, which meets regularly to monitor training and awareness of our responsibilities under the Act (and related legislation) and to monitor compliance, is chaired by our Director of Resources, and attended by senior representatives from across the council. The burden of answering your Requests distracts us from this proper purpose of meeting our broader responsibilities under the Act and gets in the way of the council providing services to our communities in very difficult times. We have a clear expectation in the light of your historical disproportionate, unjustified and persistent misuse of the Act that even if we do answer your Requests this burden and distraction will continue. Therefore your Requests are vexatious and we are refusing to answer them. Please note also that under section 17 (6) of the Act we do not intend to respond to any further requests from you. Right to Appeal We do not consider it appropriate to offer you an internal review of our decision in this case because it has been discussed and approved at Director level at the council and any internal review would therefore serve no legitimate purpose. If you are dissatisfied with the handling of your Requests you have a right to appeal to the Information Commissioner at: Information Commissioner s Office Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF Tel: Website:

7 - 7 - Yours sincerely Stephen Dorrian Senior Lawyer & Team Leader - Procurement and Information Law Tel: stephen.dorrian@harrow.gov.uk