IN THE FIRST-TIER TRIBUNAL APPEAL: EA/2017/0165

GENERAL REGULATORY CHAMBER

(INFORMATION RIGHTS)

BETWEEN:

Appellant
and

THE INFORMATION COMMISSIONER

Respondent

APPELLANT’S REPLY TO RESPONDENT’S

RESPONSE TO NOTICE OF APPEAL

Introduction

1. This Reply is served in accordance with rule 24 of the Tribunal Procedure (First-
tier Tribunal) (General Regulatory Chamber) Rules 2009.

Commissioner’s Response

2. The Commissioner’s Response demonstrates in para 50 a fundamental error of

judgement.

“For the reasons given above and in the DN, the Information Commissioner
correctly concluded that the purpose of the FOI Request was to reopen and
 prolong correspondence with the Ombudsman in relation to his conclusion
that the missing AC letters were sent to the Appellant......In these
circumstances, the Information Commissioner reasonably considered that the
FOI Request was a hook on which to pursue further with the Ombudsman
the Appellant's concerns about the missing AC letters.”

3. The Response does not, and cannot, rebut the evidence put forward by the
Appellant in his Grounds of Appeal that the FOI Request was not made for the
purposes of reopening and prolong correspondence with the Ombudsman. The
decision in the Commissioner’s Decision Notice could have only been arrived at
as a consequence of failing to take into account relevant factors raised by the
Appellant. The information has simply been asked for by the Appellant in case it
would be considered relevant to a criminal investigation [Exhibit A-1].

Not the role of the Commissioner to consider the evidence

4. The Commissioner’s Response demonstrates in para 40 that she is willing to

exploit decisions that have been made by the Ombudsman and HMCTS to support
her finding of vexatiousness but does not risk directly agreeing with those findings
(presumably because she could does not agree with them):

“It is not the role of the Information Commissioner to carry out a detailed
investigation into whether the 10 items of post said to have been sent to the
Appellant were in fact sent, or whether or not the Appellant received them.
These matters have, however, been considered in detail by the Ombudsman
and HMCTS....”

5. Clearly if the Commissioner is not going to question something on which she

relies which has been obtained from an independent source then it would be an
improper use of power to consider the information as relevant. The standard
expected of the Commissioner can not be considered to have been met if a
determination of vexatiousness relies upon on the dismissal of these institutions. If
the Commissioner is not prepared to look into the findings, or has no jurisdiction
to question them, then it is unreasonable that they are exploited in these
proceedings to help persuade the Tribunal that the requests were vexatious.

6. In any event, the part quoted by the Commissioner of the HMCTS' investigation
team outcome letter of 6 April 2017 is indicative of a non-committal response.

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 The text emphasised by the Commissioner particularly the below suggests this is
the case:

“I have not seen any reason to believe they were not posted to you”

“I have not seen any reason to suggest that it was not posted to you”

7. In this regard, the Tribunal’s attention should be brought to the Appellant’s 26

April 2017 response to HMCTS’ outcome letter which addressed this issue
(Exhibit 4 to the Appellant’s Grounds of Appeal):

“You will no doubt appreciate that I find the continued denial regarding my
assertions about the undelivered items of post not being sent irrational. In
light of my representations and on the balance of probability the letters will
not have been posted (ten letters neither delivered nor returned), I find the
view inappropriate that HMCTS has not seen any reason to believe that the
letters were not posted to me. It is not so much the reason that HMCTS
needs to look for to believe that the letters were not posted (though it should
be discovered) but whether on the evidence and probability it is credible that
they were not.”

8. The Tribunal may want to note, in respect of the Appellant’s suspicion that the
person behind the dishonest postal claim might be senior to the Justices Clerk, that
this was stated in the 26 April 2017 response as follows (emphasis added):

“With the number of people this matter must have been considered by it is
staggering that it has not at any point fallen in the hands of someone capable
of appreciating the impossibility of the situation who has had the good sense
and the authority to find a way of bypassing the obstacles to have the appeal
dealt with. The fact that is has not is an indication that the person responsible
for obstructing the appeal may be someone more senior than the Justices
Clerk. I consider this matter requires far more investigation as I'm unable to
settle for being caused such unquantifiable injustice over the protracted
period without finding out the real reason for the gross failure that prevented
the appeal reaching a conclusion.”

Secretary to the Advisory Committee / Justices' Clerk

9. Some clarification is needed regarding the claim made in paragraph 41 of the

Commissioner’s Response, i.e., “the Appellant's allegation is that all of the
relevant public officials have committed a fraud by falsely creating letters after

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 the event”. There appears to be a misunderstanding of the issue because every one
of the copies of the 10 items of post which were not delivered have the same
signature and printed name [Exhibit A-2]. The only difference in that regard is that
beneath the name and signature on 3 of the letters the words “Secretary to the
Advisory Committee” appears; on 2 of the letters the words “Justices' Clerk for
Humber and South Yorkshire” and 5 of the letters the words “Justices' Clerk”.

10. The Commissioner’s assumed failure to recognise that the Secretary to the
Advisory Committee and Justices' Clerk for Humber and South Yorkshire are one
and the same is evident in the distinction made between the missing letters relating
to the Advisory Committee and those relating to the Magistrates’ court. This is set
out in the Commissioner’s Response in paragraph 43:

“Further, the Information Commissioner notes that the Appellant puts

forward no evidence relating specifically to the missing letters from the AC.
There are the letters which are relevant to the FOI Request, which relates
specifically to missing letters from Magistrates' Advisory Committees. It is
also these letters which are relevant to the Ombudsman, since the
Ombudsman investigated the missing AC letters but did not investigate the
missing Magistrates' Court letters (on jurisdiction grounds: see paragraph....”

11. However, the Commissioner’s Response in paragraph 49 implies that she

understands correctly that the Advisory Committee Secretary and Justices' Clerk
for Humber & South Yorkshire are/is the same person. If that is the case then it is
not understood how the Commissioner could not see why the Appellant considers
the missing Magistrates’ court letters are relevant factors to be considered in
supporting the request having a serious purpose.

12. What matters above all else is that the Appellant’s motive for making the FOI
Request was not to reopen and prolong matters that have been properly concluded
(see above para 3) and therefore the Commissioner has failed to consider relevant
factors to justify finding the request vexatious.

13. The Commissioner considers at para 35 in the Response, that ‘the requests appear
to have been submitted with a view to venting dissatisfaction’. The apparent basis
for that view is that because matters have already been considered by Humberside
police it must be concluded that any further requests are vexatious on the grounds

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 that they intend to further express dissatisfaction with the outcome (para 41,
Commissioner’s Response). The Commissioner is not at liberty to assert this and
in doing so abuses the FOIA to deny the appellant his legal right to information on
a prejudiced view that the so called proper channels are the only way to address
the injustice and if those channels have been exhausted, even if wrongly, one has
to resign oneself to it. If the Commissioner is not prepared to look into the alleged
findings, or has no jurisdiction to question them, then it is unreasonable that they
are exploited in these proceedings to help persuade the Tribunal that the requests
were vexatious.

Conclusion

14. It is evident that none of the arguments on which the Commissioner seeks to rely
are of any assistance in justifying that the request is vexatious. A fundamental
error has been made in judging that the Appellant’s request has been submitted
with a view to reopening and prolonging correspondence with the Ombudsman.

15. For the reasons set out above and Appellant’s Grounds of appeal the Tribunal is
invited to find that the request was (i), not made for the purposes of reopening and
prolonging correspondence with the Ombudsman (ii), did have a serious purpose
and was therefore not vexatious.

12 September 2017