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

GENERAL REGULATORY CHAMBER


(INFORMATION RIGHTS)

BETWEEN:

 
Appellant
and

THE INFORMATION COMMISSIONER


Respondent

APPELLANT’S GROUNDS OF APPEAL

Introduction

1. This is an appeal under section 57 of the Freedom of Information Act 2000 against a
Decision Notice FS50668580 issued by the Commissioner on 26 July 2017. These
grounds of appeal are served together with the appellant’s notice of appeal, in
accordance with rule 22 of the Tribunal Procedure (First-tier) (General Regulatory
Chamber) Rules 2009.

Background

2. The appeal concerns a request for information made to the Judicial Appointments and
Conduct Ombudsman (‘JACO’). A detailed account of relevant historic events is
contained in a chronology of events, prepared to be included in a bundle intended for an
Appeal by way of a case stated [Exhibit 1].
Grounds of Appeal

3. The Commissioner refers to guidance (Dealing with vexatious requests) in paragraphs 8


to 10 of the Commissioners Decision Notice (‘DN’). It is noted in the ‘overview’ of the
guidance that what is advised where there is any doubt as to whether a request is
vexatious is to consider ‘whether the request is likely to cause a disproportionate or
unjustified level of disruption, irritation or distress’.

4. There is clearly no question about the matter in the present case as the following
representations testify; the request was not vexatious. The issue therefore is clear-cut
and in accordance with Commissioner’s guidance the question as to whether the request
was likely to cause a disproportionate or unjustified level of disruption, irritation or
distress was not a consideration.

The Judicial Appointments and Conduct Ombudsman view

5. There are no words more fitting to describe the account set out in paragraphs 17 to 25 of
the DN than it being a complete and utter contrivance. Paragraph 17 begins with the
following:

“JACO said that the genesis of the complaint was the complainant's dissatisfaction
at the disposal of a summons for the non-payment of council tax in November
2012, especially the costs that had been awarded against him. The complainant had
subsequently applied to judicially review the local authority bringing the case. The
root cause of the complaint was that the complainant was seeking to challenge a
judicial decision by some means other than through the courts. However, JACO
said it could not comment on any issues raised in a court case.”

6. JACO has tactically distorted the events in order to lay foundations upon which an
argument could be constructed to assert that the Appellant had resorted to the courts and
was therefore using the FOIA regime to reopen and prolong matters that have been
properly concluded. The above and subsequent representations in the DN back this up,
in particular para 22.

7. The origin of the matter was immaterial to the complaint made to the Advisory
Committee (AC) on 2 September 2014 and subsequently escalated to JACO. The issues
were associated with a High Court application (appeal by way of a case stated) but were

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irrelevant to the Appellant’s complaint about the Magistrates’ conduct. As stated in the
September complaint letter it was the events leading on from the application set out in
the appended Chronology of events that were relevant.

8. A document which the Magistrates had an obligation to serve by the 10 September 2013
had not been received by the Appellant by the time the September 2014 complaint was
submitted to the Advisory Committee (delayed by a year). The complaint concerned the
Magistrates negligence in this matter which clearly did not raise an issue about the
judicial decision made in respect of the Council Tax matter.

9. After a string of correspondence enquiring about the failure to deal with the matter the
Appellant emailed the Magistrates’ court on 9 July 2014 as a last attempt and enquired
into whether HMCTS had any arrangements in place to restrict his contact with Humber
and South Yorkshire, and if so in what way. There was never a reply hence the
complaint to the Humber and South Yorkshire AC (September 2014). The Appellant
received no response in relation to the complaint so enquired with the Judicial Office in
May 2015, hoping to establish why the complaint had not been acknowledged.
However, the Judicial Office merely forwarded the email to the AC Secretary.

10. In the absence of a response the Appellant raised concerns in June with the Head of the
Judicial Conduct Investigations Office (JCIO) who responded stating that she had
contacted the AC Secretary in the hope she would make contact directly. She suggested
complaining to JACO if the handling of the complaint remained unsatisfactory. In the
absence of a response from the AC Secretary the Appellant contacted JACO expressing
his wish to escalate a complaint, first on 8 August 2015 and again on the 19 August after
receiving no acknowledgement.

11. JACO eventually replied in December 2015 apologising for the 4 month delay in
responding. The Ombudsman’s remit was also set out, some of which permitted him to
consider the delay in investigating the AC complaint submitted more than a year earlier
on 2 September 2014. The Appellant gave permission to JACO’s Office to disclose the
complaint and correspondence to the AC and confirmed that the AC had not responded
to any correspondence about the matter and the case still unresolved requesting therefore
that the Ombudsman consider the process by which the AC handled the matter so far.

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JACO’s Office replied stating that the complaint file would be requested from the AC
and an update given after it had been received and considered.

12. JACO’s claim in para 17 of the DN that the complainant sought to challenge a judicial
decision by some means other than through the courts was therefore a complete
misrepresentation of the truth.

13. The DN then highlights in para 18 that the Appellant’s complaint had been dealt with 1
but dismissed on the basis that he was complaining about a judicial decision which did
not raise questions of misconduct. Apart from the Appellant’s assertion that the
dismissal letter (and alleged re-sent copies) were never sent and will have been
produced in response to the investigation, the dismissal letter erroneously linked the
complaint to a judicial decision (see above paras 7 & 8). The postcode error was
suspected by the Appellant to be a diversionary tactic to shift focus from the
misconduct. It enabled the Ombudsman, in conjunction with the letters produced
afterwards, to consider a token error which would be so minor he would be justified in
dismissing the complaint for investigation [Exhibit 2, email of 27 May 2016]:

“The Ombudsman has decided the outcome purely on the basis that he believes the
Advisory Committee's version of events when the overwhelming evidence is that
the letters have been produced afterwards and in response to preliminary enquiries.

From the Ombudsman statement at paragraph 4 of his decision the matter is


narrowed down to such triviality as to decide whether he considers the alleged
letters containing a minor error in the post code constitutes maladministration,
which of course it wouldn't but is not the issue.

The deliberate postcode error was an obvious and half-hearted attempt at a red
herring, but did serve as something on which the Ombudsman could base his
report. It should be noted that other correspondence sent by the Justices' Clerk,
properly addressed, have been received both before and after the alleged letters
were sent.”

14. In light of correspondence sent to the Appellant [Exhibit 2, email of 3 March 2016]
JACO makes in para 21 of the DN some conflicting statements. It believed that the

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JACO wrote in February 2016 informing the Appellant that the complaint file had been obtained from the AC
and apologised for the delay which was down to the significant amount of time obtaining it. It transpired that the
AC had three letters on file that were sent in response to the Appellant’s correspondence; one to the AC itself,
and the others to the Judicial Office and JCIO. Though the Appellant did not receive any of the alleged letters,
copies were attached to JACO’s 23 February email.

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Appellant had sought the information to prolong correspondence in respect of a matter
which had been considered in full by the Ombudsman, so lacked serious purpose. The
most bizarre was its assertion that he would possibly attempt to pursue with other public
authorities, matters that had properly been closed after appropriate investigation. The
aforementioned email expressly advised the Appellant which public body would need
contacting about the matter:

“Concerns about the Court not responding to your communications about the
missing document would need to be made to the Court Manager in the first
instance. However, if (as you state) the Court has failed to respond to your
communications, you can escalate your concerns to Her Majesty's Courts and
Tribunals Service, Complaint Handling and Enquiries Team. Their contact details
are....”

15. A presumption is made in para 22 of the DN that the Appellant’s objective was to have
the Ombudsman’s finding of no fault in his case overturned and was seeking to reopen
or prolong matters that were considered to have already been determined by the
Ombudsman. In that it was also presumed that the only avenue that the Appellant could
seek justice was through JACO. The Ombudsman overlooks that the Appellant had
already taken the advice in JACO’s 3 March 2016 email and the complaint process
carried out by HMCTS eventually uncovered previously unseen correspondence going
back as far as December 2013. It was therefore on the balance of probabilities to a far
greater extent weighted in favour of the letters never being posted and being produced
after various enquiries were made. The total items of correspondence uncovered
numbered 10 spanning the period from 19 December 2013 to 13 December 2016.
Details of this and a another related request had been set out in a submission to HMCTS
highlighting the potential if the requests were complied with, which proves that the
Appellant acted, not to cause annoyance, but because he perceived there to be a serious
purpose [Exhibit 3, paras 26-29].

16. JACO then considers the prospects being nil of the Appellant being successful in
pursuing a remedy which he has no intention of pursuing, i.e., ‘there could be no
prospect that the complainant's concerns about the Magistrates would be reconsidered
or that the Ombudsman would require the AC to reconsider the complainant's
concerns’. It is also spuriously claimed, regarding the only way that the Ombudsman’s
decision can be challenged (judicial review) that the Appellant had instituted a claim
which he subsequently withdrew. The Appellant had not even considered exercising his
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appeal right to institute a judicial review claim in the matter and so JACO’s claim was
entirely false. The Appellant’s 2 December 2016 request for internal review in response
to JACO’s refusal to disclose the requested information contained the following:

“The Ombudsman has wrongly assumed that the request is for evidence gathering
for the purpose of justifying a review of a complaint with the possibility of altering
the decision. Unfortunately I'm too aware of these procedures to be under any
illusion that a different outcome can be achieved once an Ombudsman has made
up his mind. The "establishment Vs. the public" mentality is all too obvious with
the Ombudsman implying he could not care less about altering his view because
he considers himself in the clear as 'the time limit for seeking a Judicial Review
has passed'. Incidentally, the threat of crippling litigation costs to anyone who
disagrees with a government watchdog has become standard practice for so long
that the wrong in it is no longer seen by officials.

The Ombudsman is misconceived anyway that the High Court might be engaged
because even if the time limit for seeking Judicial Review had not passed, it would
be madness to proceed in litigation where all the cards are stacked in favour of the
public body.”

17. It is next asserted by the Ombudsman that the Appellant had taken steps to pursue a
legal remedy before submitting a complaint and had an understanding of the process for
challenging matters through the Courts and was therefore using the FOIA regime to
prolong a matter that had been closed. It is neither understood what relevance this has to
a matter concerning 10 letters that were never delivered but were claimed to have been
sent, nor is it known what legal remedy the Ombudsman was referring to. The Appellant
did however point out inaccuracies stated in JACO’s final decision in an email of 24
May 2016 [Exhibit 2]. For example it was evidently misunderstood that the Council had
come to an agreement with the Appellant which rendered a legal remedy which had
been instituted no longer necessary.

The Commissioner’s decision

18. The Commissioner states the following, in respect of the Appellant’s suggestion that
court staff have falsely produced letters after the event (DN para 26):

“During her investigation, the Commissioner saw no evidence to support this


assertion and is satisfied, on a balance of probabilities, that these accusations have
no foundation in fact.”

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19. The Appellant provided representations to the investigating officer after it was
communicated to him that that the Commissioner must work to the civil standard of
proof of a balance of probabilities and in the absence of objective evidence to the
contrary she was minded to accept the evidence of HMCTS that the 10 items were
actually posted [Exhibit 4]. It is therefore assumed that the DN had been prepared
before the new information had been provided and was not accounted for.

20. Apart from the probability being virtually zero that 10 items of post sent by the court to
the same address over a three year period would not be delivered, there is evidence in
the letters’ content which show irregularities so glaringly obvious that there is little
doubt as to the fact. The evidence which was made available to the Commissioner was
far stronger than the required civil standard of proof, it was beyond a reasonable doubt.

21. The inconsistencies were recorded in correspondence to the Head of Customer


Investigations (HMCTS) and forwarded to the Commissioner on 11 July 2017 [Exhibit
4, paras 11 to 25]. A summary is provided below:

 email of 6 March 2014 which was received by the Appellant highlighted the
irregularity of letters allegedly sent before the email

 the document had allegedly been served in December 2013 and again in
February 2014 but the 6 March 2014 email made no mention of it

 the court had been alerted about the document not being received so would
have logically ensured on first being made aware that subsequent sendings
would be registered and a record of posting retained

 received correspondence was consistently acknowledged when the court


requested it from the Appellant. Two of the undelivered letters asked for
acknowledgement but for obvious reasons the court received none in respect of
these but the court never acted on it

 representations served on the court by the Appellant on 19 August 2013 were


acknowledged a disproportionate 4 months later in the undelivered letter dated
19 December 2013

 the undelivered letter of 19 December 2013 omitted the required statutory


statement of the alleged extension that was given to the Council because it had
'stated that they had not received the draft case'

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 the undelivered 19 December 2013 document would have overrun the 30
September 2014 date required for service by 80 days after factoring in the
alleged extension that had been granted

Conclusion

22. The Appellant’s motive for making the request did have a serious purpose which by
definition could not have been made with the intention of causing annoyance; and so in
accordance with Commissioner’s guidance it was immaterial whether the request would
cause disruption, irritation or distress.

23. The motive for JACO applying section 14(1) appears to have been to avoid disclosing
information that would potentially be embarrassing.

24. The Commissioner asserts that FOIA should not be used as a way to reopen and prolong
matters that have been properly concluded. The Appellant has patently no desire to do
this. He would if anything be attempting to open up new issues as a consequence of
what the Ombudsman and HMCTS had uncovered. JACO simply determined that the
typing error in the postcode and not emailing letters as a back-up did not amount to
maladministration. The Appellant has no wish to contest this and is therefore immaterial
to why he requested the information. However, even if that was not the case, it is not for
the Commissioner to make judgment as to whether a request is vexatious on this basis
and would clearly be acting ultra-vires her powers to do so. The related matter to that
which the Commissioner considers had “concluded” had evidently not because of
HMCTS’ involvement and other public bodies which are still involved.

2 August 2017