IN THE FIRST-TIER TRIBUNAL APPEAL: EA/2017/0062

GENERAL REGULATORY CHAMBER

(INFORMATION RIGHTS)

BETWEEN:

Appellant
and

THE INFORMATION COMMISSIONER

Respondent

APPLICATION FOR PERMISSION TO APPEAL TO UPPER TRIBUNAL

(GROUNDS OF APPEAL)

Introduction

1. These grounds of appeal are in accordance with paragraph (5)(b) and (5)(c) of rule
42 of the Tribunal Procedure (First-tier) (General Regulatory Chamber) Rules
2009.

Alleged errors of law

Misapplying the legal test in the judgment of the Upper Tribunal, IC v Dransfield
[2012] UKUT 440 (AAC), to arrive at a decision of vexatiousness

Failing to adequately support the Tribunals decisions

Lack of objectivity

Taking into account irrelevant factors

failure to take account of relevant factors

 Lack of objectivity

2. It is considered that a biased Tribunal can be raised as a point of law in an

application for permission to appeal to the Upper Tribunal. The Tribunals
Decision clearly demonstrates that the Appellants and the HPs submissions were
not considered in equal measure.

3. In the circumstances (i.e. where the public body cites vexatiousness to facilitate a
cover-up in which Humberside Police and governing bodies etc. are complicit) it
is considered an oppressive use of the Tribunal to assist them in obstructing the
disclosure of information requested by the Appellant by dismissing the Appeal. It
is therefore in the public interest that the matter is put before the Upper Tribunal
for consideration.

Considering generically a number of distinct submissions

4. The legal test has been misapplied in the Upper Tribunal, IC v Dransfield [2012]
UKUT 440 (AAC), (the UT). If a public body is to apply the vexatious
exemption it must be in respect of the request specifically, not the requester. The
fact that 5 separately submitted requests have been generically considered is
compelling evidence that the law has been interpreted wrongly in order to deny the
Appellant access to the information. This is further reinforced on account of none
of the submissions have specifically been referred to individually by the
Commissioner in the DN or representations, other than for the purposes of
recording a summary of the requests.

5. There is further evidence in the Tribunals Decision (para 4) that the law has been
interpreted wrongly and the Appellant rather than the requests themselves have
been considered vexatious.

6. The sample requests could only be relied on to argue that the requests under
scrutiny were vexatious if in respect of those samples there had been disclosure (or
exemption applied) and in the face of this the Appellant proceeded to ask for
identical or substantially similar information. Moreover, it is a request itself which
has to be determined vexatious so any such consideration would have to be on an
 individual basis, not on a group of requests compared with another as the Tribunal
has done. Evidently, none of these requests fall in a category of being identical or
substantially similar.

7. The Commissioners guidance on dealing with vexatious requests 1 provides a

number of indicators that may suggest a request is vexatious. However, it is of
central importance to be aware that a request, if clearly not vexatious, can not be
determined so merely because it can be linked to one or a number of indicators (a
request may contain all of the indicators and not necessarily be vexatious). Factors
are considered on the circumstances of each individual case in reaching a
judgment as to whether the request in issue is vexatious.

8. This is consistent with analysis in the judgment of the UT on which the

Commissioner relied (see Commissioners Response) to persuade the Tribunal that
the Appellants requests were vexatious. Though in the UT judgment the
indicators are referred to as telling factors.

9. The Commissioners Response (paras 49-56) relied on all of the four broad issues
or themes which the UT deemed would be helpful in considering whether a
request is truly vexatious. However, see below paras 12-13 (misapplying the legal
test).

10. In paragraph 11 of the Commissioners Response in respect of the burden

imposed on the public authority by the request the UT judgment (para 29) is
quoted which sets out clues that might give away whether a request can be
properly characterised as vexatious.

(1) The burden

29. First, 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,

1
https://ico.org.uk/media/for-organisations/documents/1198/dealing-with-vexatious-requests.pdf
 breadth, pattern and duration of previous requests may be a telling
factor.

11. The subsequent paragraphs (30-33) however expand on the telling factors which it
lists as the number, breadth, pattern and duration of previous requests

30. As to the number, the greater the number of previous FOIA requests
that the individual has made to the public authority concerned, the
more likely it may be that a further request may properly be found to
be vexatious. Volume, alone, however, may not be decisive.
Furthermore, if the public authority in question has consistently failed
to deal appropriately with earlier requests, that may well militate
against such a finding that the new request is vexatious.

31. As to their breadth, a single well-focussed request for information is,

all other things being equal, less likely to run the risk of being found to
be vexatious. However, this does not mean that a single but very wide-
ranging request is necessarily more likely to be found to be vexatious
it may well be more appropriate for the public authority, faced with
such a request, to provide advice or guidance on how to narrow the
request to a more manageable scope, failing which the costs limit under
section 12 might be invoked.

32. As regards the pattern, a requester who consistently submits multiple

FOIA requests or associated correspondence within days of each other,
or relentlessly bombards the public authority with e-mail traffic, is
more likely to be found to have made a vexatious request.

33. Likewise, as to duration, the period of time over which requests are
made may be significant in at least two ways. First, a long history of
requests eg over several years may make what would otherwise be,
taken in isolation, an entirely reasonable request, wholly unreasonable
in the light of the anticipated present and future burden on the public
authority. Second, given the problems of storage, public authorities
necessarily have document retention and destruction policies in place,
and it may be unreasonable to expect them eg to identify whether
particular documents are still held which may or may not have been in
force at some perhaps now relatively distant date in the past.

12. Clearly the number, breadth, pattern etc., of requests may only point to a finding
that a request is vexatious and can only assist the Commissioner come to a
decision. What the Commissioner has to bear in mind above all else is whether a
particular request is vexatious. This means an individual with a history of making
 numerous requests in quick succession that were all very wide-ranging over a
protracted period (i.e., ticked all boxes) would be caused an injustice if a particular
request was made which clearly had a serious purpose was found to be vexatious.

13. Having established that the information sought would be of value to the requester
or of public importance then there would be no sense or justification to consider
the analysis of what may constitute a vexatious request set out in the UT judgment
(paras 24-39). Once a request has been determined to have a serious purpose, to
proceed further, would be misapplying the legal test to refuse it on the grounds
that the requester himself is vexatious (as opposed the request) or because the
public body simply does not want to disclose information that might be self
incriminating.

14. Though it should warrant no further consideration, the Commissioner succeeded

in persuading the Tribunal presumably from being influenced by submissions in
the Response (see above para 9), however, if that was the case the panel failed to
give reasons for its decision.

Burden

15. The Commissioners Response (para 50) sets out why the Appellant is perceived
to have burdened HP with correspondence stretching back as far as 2011 in the
context of paras 29-33 of the UT. Notwithstanding the legal test which would
have, if applied lawfully, not even warranted these considerations, its core
argument revolved around issues which were only relevant to one of the five
requests, even though the Commissioners reasoning for considering all five was
identical. But putting all this to one side, the Tribunals decision demonstrates that
relevant evidence was not considered because the reasons for the volume of
correspondence (which were extensively supported) arose above all else because
issues had been improperly dealt with by the force.

16. Para 30 of the UT (see above para 11) states that the volume alone may not be
decisive, but also if the public authority consistently failed to deal appropriately
with earlier requests, that may well militate against such a finding that the new
request is vexatious. So, if the circumstances did warrant applying the test (which
 they did not) it would have been reasonable to conclude that the flow of
correspondence could have been stemmed if earlier matters had been dealt with
appropriately. In Thackeray vs Information Commissioner (EA/2011/0082) the
Tribunal found that persistence was justified (para 26) so far as is relevant, as
follows:

The dogged pursuit of an investigation should not lightly be characterised

as an obsessive campaign of harassment. It is inevitable that, in some
circumstances, information disclosed in response to one request will generate
a further request, designed to pursue a particular aspect of the matter in
which the requester in interested.[...] It seems to us that Mr Thackeray was
doing no more, in that chain of requests, than pursuing a legitimate line of
enquiry. The request was not one that was so similar to the first request that
section 14(2) could have been invoked by the Authority, and it was
sufficiently distinct from the other requests or chains of request that we have
identified that it may not fairly be characterised as the simple re-working of
earlier requests. Nor was it an attempt to place on the Authority a burden of
work with no corresponding value to the public in having the information
disclosed...

17. Various failings have been highlighted throughout the Appellants protracted
dealings with the force which has increasingly warranted involvement of the
Independent Police Complaints Commission (IPCC). Evidence, which was by no
means exhaustive, had been provided to the Tribunal documenting the Appellants
continuing fight to have matters properly dealt with. More comprehensive
evidence2 highlights failings, especially in respect of the force following incorrect
procedures when dealing with matters under the Police Reform Act. The IPCC
finding it necessary to oversee the force, on account of its wholesale abuse of the
Police Reform Act suggests that as well as the Appellants private interest there is
a wider value in making the requested information publicly available.

18. In Marsh vs Information Commissioner (EA/2012/0064, 1 October 2012) the

Tribunal also found that persistence was justified. In allowing the appeal they
commented (para 28) that:

....consideration must also be given to the subject matter of the information

request under review, particularly where the persistence of its pursuit forms

2
See Abusing complaint process under the Police Reform Act 2002, paragraphs 28-40 of Appellants
Reply (EA/2017/0161) and relevant Exhibits (A-4 to A-6).
 part of the grounds for invoking section 14. Put at its highest, the pursuit of
information about serious wrongdoing by a public authority would justify a
very great deal of persistence, including drilling down, in a series of
requests, into the detail behind previous responses which may have been
expressed in general terms....

And, in para 30:

We think it appropriate, and indeed necessary, for us to take into account

this evidence because it reinforces our own view, having gone through with
Mr Marsh the Councils complete log of its communications with him, that
the Central Enquiry was not vexatious. We have demonstrated, in the history
summarised in paragraphs 12 to 23 above, how Mr Marsh pursued a
legitimate concern on an issue of some significance, at first with a degree of
co-operation from the Council and, when that was removed, by dogged,
forensic investigation of the information the Council provided to him or to
the public. It was a campaign that led the Councils own Overview and
Security Committee to investigate in 2008 and some of its members to
express concern about the way in which cost claims appeared to have been
assessed. There is also some suggestion that, having provided the public with
a budgeted 0.5 million increase in costs recovery, which it was then
unwilling or unable to justify when challenged by Mr Marsh, it simply
refused to engage with him on the subject and issued a refusal notice ... The
issue under consideration was also a relatively complex one... This provides
further justification for different strands of enquiry having been pursued in
parallel and investigated in some depth.

19. It is also important not to lose sight of the fact that the basis for determining the
present requests vexatious is HPs claim that they relate to a long standing dispute
about Council Tax enforcement and the complainant has continued to press
matters long after they have been adjudicated and dismissed and has therefore
been unreasonably persistent. The Tribunal has considered irrelevant evidence
presented by the Commissioner in relation to 4 of the present requests because a
miscarriage of justice, to which the requests relate, could not conceivably be
considered a continuation of the Council Tax matters.

20. Even stretching the imagination to the point that the miscarriage of justice could
be construed as a continuation of the matter going back several years, the Tribunal
cases referred to above have justified persistence if it is in the pursuit of serious
wrongdoing by a public authority or is a legitimate line of enquiry. An interesting
point worthy of note is that if it were actually considered a continuation then it
 would have to be on the basis that the Appellants allegation of a stitch-up by HP
with the court and CPS as accomplices is accepted by the Tribunal. However,
more disturbingly it would indicate that officials at every level deem that
criminalising an innocent person whilst defrauding him in the process is quite
acceptable as a means of satisfying a grudge. This seems to be acknowledged by
the Tribunal in para 12:

He has through the course of his dealings imposed a significant burden on

himself in terms of effort, stress and some expense.

21. It may be considered an acceptable form of punishment by the various authorities;

however, all those who have participated surely must be liable to criminal
prosecution, which also goes for a judge who finds a defendant guilty knowing he
is not. The Tribunal can not credibly claim ignorance because the Commissioner
forwarded evidence which is contained in the Open Bundle (OB2) File 2, pages
5-113. Within those papers is proof (along with other) of:

HP failing to pursue all reasonable lines of enquiry and proceeding with

the case when it could not conceivably have met the evidential stage test
(witness statements were clearly unreliable and of questionable
credibility, i.e. false). breach of the Police and Criminal Evidence Act 1984

The CPS failing to assess evidence to ensure that the charge is still
appropriate and where not, discontinue the prosecution, (improper case
management). breach of the Police and Criminal Evidence Act 1984

HP failing to retain footage of a total 7 CCTV cameras covering relevant

areas in respect of the day of the alleged matter

witness statements containing completely untrue accounts. liable to

prosecution under section 89 of the Criminal Justice Act 1967

failure of the CPS to properly serve material on the Appellant considered

capable of undermining the case for the prosecution which also set out
the statutory requirements to submit a written defence statement. breach
of the Criminal Procedure and Investigations Act 1996

etc., etc., etc.

 Motive and Value / Serious Purpose

22. The Commissioner has relied not only on requests but has also focussed on the
number of complaints/correspondence that the Appellant has submitted over the
years to persuade the Tribunal that the vexatious exemption applies. It would be
difficult to deny that matters highlighted by the Appellant concerning the
systematic abuse of the Police Reform Act will not have had a material impact in
tightening up practices; not when the relevant watchdog has deemed it necessary
to monitor the procedure. The second request set out in the DN (FS50636574) was
directly relevant to HPs Professional Standards Branch failing to oversee a
complaint made as a consequence of the miscarriage of justice and so related to
the matter which the IPCC subsequently became involved in. This would therefore
be characterised as a request having a wider public interest and certainly not one
continuing a theme of Council Tax enforcement.

23. The third request (DN, FS50636604) raised matters which could reasonably have
been considered to be of wider public value, namely of HPs policy not to
investigate allegations of perjury unless the court requests or recommends it. This
is contrary to the view of the CPS (see below para 27).

24. The request was submitted because in response to the conduct complaint regarding
the miscarriage of justice, the crimes which were reported by the Appellant about
two false witness statements made by members of the public had not been
recorded. The force emailed the Appellant on 3 December 2015 containing, so far
as is relevant, the following:

...Your complaint is being dealt with in accordance with the Police Reform
Act. Your complaint is being held sub judice at this time as there are
outstanding criminal proceedings. The correct forum for you to challenge the
evidence given by any of the witnesses is through the court. It is not practice
to investigate an allegation such as you have made unless the magistrates or
judge makes comment about the evidence and recommends that the Force
investigates the matter unless there are other aggravating circumstances to
make an investigation imperative. In this case you have not provided any
evidence, other than your opinion, which would suggest that it is necessary
at this time to carry out an investigation.
25. As mentioned, the false statement allegations were made within a conduct
complaint. The force expressed that it would be considered as an abuse of the
complaints process to investigate the allegation you have made under the Police
complaints process as the situation stands now. The situation had changed by the
time the crime was reported on 29 February 2016, which was via HPs dedicated
webpage for reporting a crime (i.e. outside the Police complaints process). There
was no acknowledgement from HP about the reported crime which motivated the
Appellant to submit the request relating to who or what department has dealt with
or will be dealing with the crime (DN, FS50636604).

26. Though the force never responded to the 7 March 2016 FOI request, it did later in
the context of the reported crime. However, the force reiterated the points made in
the 3 December 2015 correspondence and referred to a letter which was in
connection with the allegations of the council submitting perjured evidence to the
court. The letter of 13 January 2016 contained the following:

I have sought legal advice from our Force Solicitors in respect of the points
you make.

I understand that this matter has been heard in a court of law. The advice I
have obtained is that the issues you raise may be appeal points that could be
raised at any subsequent appeal hearings.

Humberside Police do not investigate allegations of perjury unless a request

to do so comes from the court themselves.

27. The Appellant cannot be criticised for pursuing this. The witnesses were liable to
criminal prosecution for submitting false evidence and were being allowed to
evade justice because of HPs policy. However, that is only one reason why
persistence was justified. The other being that the police do not have to be
instructed by the court to investigate perjury, not in the Crown Prosecution
Services view. Its website states under heading "Cases Involving Allegations of
Perjury":

Where a judge or magistrate believes that some evidence adduced at trial is

perjured s/he can recommend that there should be a police investigation.

The absence of such recommendation does not mean that there is no

justification for an investigation.
28. The fourth request (DN, FS50637739) was on the theme of false witness
statements (fabricating evidence) and asked for disclosure of any policy that the
force held regarding the improper use of these practices for the purposes of
imposing a significant burden on someone against whom the force held a grudge.

29. If any of the five requests could have been characterised with justification as being
vexatious then this would be it. However, it should have been obvious to anyone
who was aware of the intransigence demonstrated by the force over its failure to
investigate the false accusations made against the Appellant that a point had been
reached where something had to give.

30. Having said that, the force could have made allowances, especially as it was likely
to be aware of the level of stress that all the circumstances had put on the
Appellant. In that case it was open to the force to provide advice and assistance,
triggered under its Section 16 duty for unclear or ambiguous requests.
Alternatively the Commissioners guidance (Interpreting and clarifying requests)3
under the heading Contentious criticisms and allegations provides advice for
when a requester has levelled criticisms or allegations at the authority or its
employees.

31. The fifth request (DN, FS50650239) was subtly different to the previous one in as
much as there was a reasonable expectation (in the first element) that the requested
information, albeit in need of clarification, would be held. The second element
was clear and needed no clarification. It may have been that the force deemed
there to be no value or serious purpose of the request, however, the UT (para 38)
warns against jumping to conclusions about the lack of value or serious purpose
also contained within that paragraph:

In any case, given that the legislative policy is one of openness, public
authorities should be wary of jumping to conclusions about there being a
lack of any value or serious purpose behind a request simply because it is not
immediately self-evident.

3
https://ico.org.uk/media/for-organisations/documents/1162/interpreting-and-clarifying-a-request-foia-
eir-guidance.pdf
32. Even though the request could be considered to have fallen under the contentious
criticisms and allegations category, a matter clearly of a wider public interest was
being dealt with which was provided as an explanatory note:

....a two tier system exists, where on the one hand, a crime deemed to be
committed by an average taxpaying member of the public (whether there is
evidence or not) is, as a matter of course, processed through the justice
system with the end goal being a conviction and obtaining revenue from
imposing fines, cost etc. On the other hand, if the crime is committed by, or
on behalf of the state, a limitless amount of taxpayer's money is ploughed
into ensuring the course of justice is perverted and no investigation of the
victim's allegation takes place.

North East Lincolnshire council for example, had been exposed for
committing perjury [...] but the force, rather than investigating the matter
(for which evidence was handed it on a plate) misused taxpayer's money by
engaging its solicitor to achieve the best chance of avoiding its duty to solve
the crime, thus brushing the matter under the carpet.

33. It cannot be denied that public money is being used to fund people in the legal
profession to carry out a function which is not in the taxpayers interest. The force
solicitor was relied on to justify taking no action in respect of the Appellants
allegations which has caused an unquantifiable amount of injustice. The force
clearly sees itself no longer accountable once matters have been considered by the
force Solicitor, regardless of whether or not the advice is correct. HPs
Professional Standards Branch is used for a similar purpose.

34. What cannot conceivably be justified is HP, the Commissioner and the Tribunal
relying on requests 2 through 5 in this appeal to be a continuation in any way of
the Council Tax enforcement matters going back to 2011. Only request 1
(FS50622654) has any connection, the subject is entirely different for the others.

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

35. It has been mentioned (above para 30) that HP would be aware of how much
stress the recent injustices would have caused the Appellant. However, there must
also be taken into account a catalogue of negligence and fault that has added to the
stress over many years which can be attributed to HP either directly or indirectly.
 It has been decided against detailing all these for the time limit being only 28 days
within which this application for permission to appeal must be lodged. HP has,
rather than wishing to play-down the burden it has imposed upon the Appellant
and all the damage caused him, has chosen to highlight it by exploiting the
backlash in the way it has to prejudice the Tribunal.

Taking into account irrelevant factors

36. In the present case, 4 of the requests relate to the miscarriage of justice which had
undeniably been caused by Humberside police who has at all times obstructed
every attempt by the Appellant to get to the truth. Only 1 of the requests can be
said to have directly arisen out of the dispute of long standing between the
complainant and Humberside Police which the Commissioner described in para 4
of the Decision Notice as follows:

The matters relate to the alleged non-payment of council tax by the

complainant and to an application by a local authority for a Liability Order
against him. The police regard these as civil matters but the complainant
says that they are criminal matters and that the police have therefore not
proceeded correctly.

37. Disputes regarding police considering fraud a civil matter etc. were related, only
insofar as it was feasible that witnesses who produced false statements, were encouraged
by the force to assist a wrongful conviction of the Appellant to satisfy a grudge (para 21
DN). The Tribunal (Decision, para 12) clearly considered the case in the context of
background information namely that which related to the dispute of long
standing (relevant only to one request, FS50622654). Consequently the decision,
in respect of the four other requests is unlawful as the factors in determining it
were clearly irrelevant.

Other matters

Wrongly assuming requests are from the Appellant

38. It is evident from the whatdotheyknow website that HP continues to assume that
the Appellant is behind certain requests which he has nothing to do with. This
indicates that the volume of request that HP relied on to persuade the
 Commissioner initially that the requests were vexatious was inaccurate. However,
more importantly the standard to which HP obviously works regarding the
reliability of evidence is disturbing (the police are governed by a raft of legislation
enacted to ensure that stringent procedures are in place to prevent injustice). The
Appellants held view that HP played a major role in his wrongful conviction is
supported by HPs reliance on wild guesswork and reinforces the evidence that it
had breached the Police and Criminal Evidence Act 1984.

Tribunals Decision (consideration)

39. The Tribunals Decision para 12 is an account having no relevance at all to the
requests which have been characterised as vexatious. The background of the
appeal has been focussed on as it has erroneously throughout the appeal by the
Commissioner. However, it is not just irrelevant, the Tribunal has been cautious
not to give reasons for its opinions.

40. Tribunal has expressed, without any appreciation for the parties truly responsible,
that the Appellant has brought about the significant burden on himself in terms of
effort, stress and some expense. The justification for this is that he has pursued a
dubious argument inappropriately and excessively, but no clues are given as to
what argument the Tribunal refers to. To reiterate, it is not relevant to the Appeal
but as it has been recorded in the Decision, fairness demands that the Tribunal
explains its comments.

41. The Tribunal makes spurious statements regarding the reopening of issues which
have already been resolved, usually through court proceedings. Again, any
reader of the Tribunals Decision will be left wondering what issues have been
resolved and by which court proceedings. The Tribunal will probably have been
led astray by the Commissioner who had forwarded evidence (see above para 21)
which were the Appellants defence statement, appeal to the Crown court and
papers in connection with a proposed private prosecution.

42. The Commissioner had contacted the Appellant on 17 May 2017 asking to be
forwarded the papers referred to above as follows:
 Further to the Tribunals directions below I would be grateful if you could
confirm by 23 May if you wish to have any further documents added to the
hearing bundle for this matter.

In particular I believe it would be useful for the following documents, linked

to from your FOI request of 4 May 2016 entitled Degree of evidence -
Public authority vs. Member of public, to be included in the bundle in order
to set out the background to the requests in the present matter:

[DESCRIPTION OF DOCUMENTS]

However, I am not able to download or print these documents. If you are

able to provide electronic copies of these documents, together with any other
documents you consider to be relevant by 23 May 2017, I would be
grateful.

43. The Appellant forwarded the documents as requested but was not that nave not to
know why they were asked for. However, the Appellant was nave in respect of
the Tribunal panel, which he expected would read them and realise that the court
did not consider the matters and appreciate that they had far from been resolved.
The evidence in fact supported the Appellants allegations which in theory should
have been in his favour but apparently that is not haw things work in practice.

44. The Independent Police Commission has taken over a complaint into the matter in
which HP wrongly dealt with by Local Resolution and had delayed its outcome by
taking hundreds of days to complete. There is some question as to whether these
issues have in fact already been resolved, usually through court proceedings.

45. More spurious statements are made without any reference to what the Tribunal
refers to. It is said that the Appellant has made totally unfounded allegations of
the gravest kind against many people who have dealt with him purely because
they have not agreed with his analysis. The statement is an easy one for the
Tribunal to make without giving any reasons to support it. If the panel wishes to
include such statements they should at least give some clue as to what the analysis
refers to.

17 November 2017