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Appeal No. EA/2017/0165

IN THE MATTER OF AN APPEAL TO THE FIRST-TIER

TRIBUNAL

(INFORMATION

RIGHTS) UNDER SECTION 57 OF THE FREEDOM OF INFORMATION ACT 2000

BETWEEN:

- and -

THE INFORMATION COMMISSIONER

Appellant

Respondent

RESPONSE OF THE INFORMATION COMMISSIONER

A. INTRODUCTION

1.

This is the Information Commissioner's response to the Notice of Appeal served by the Appellant dated 2 August 2017 (the “Appeal”) against the Information Commissioner's Decision Notice of 26 July 2017, ref FS50668580 (the “DN”).

2. The DN addresses a complaint made by the Appellant against the Judicial Appointments and Conduct Ombudsman (the "Ombudsman" or "JACO") in relation to his handling of the Appellant's request for information about correspondence from a Magistrates' Advisory Committee to complainants 1 . The Information Commissioner decided that the Council had correctly applied section 14(1) of the Freedom of Information Act 2000 (”FOIA”) to the Request, and that the request was vexatious within the meaning of that provision.

1 There are a number of different local Magistrates' Advisory Committees, for example the Avon & Somerset Advisory Committee, the Bedfordshire Advisory Committee, the Berkshire Advisory Committee. Magistrates' Advisory Committee consider complaints about Magistrates.

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B. BACKGROUND

Events leading up to the FOI Request

3. This case arises out of a complaint made by the Appellant to his local Magistrates Advisory Committee (the "AC") in September 2014 (the "AC Complaint"). The complaint to the AC concerned matters which arose following the disposal by the Magistrates of a summons for the non-payment of council tax by the Appellant in November 2012. The Magistrates had granted a Liability Order against the Appellant and ordered him to pay the costs of the Local Authority. The Appellant wished to appeal to the High Court by way of case stated. After attempting to correspond with the Magistrates' Court in relation to the appeal, the Appellant appealed to the AC in the following terms on 2 September 2014 (the "AC Complaint"):

“I have concerns arising from a Council Tax Liability Order hearing on 2 nd November

An application was subsequently submitted to the Magistrates' court to state a

case for an appeal to the High Court regarding the order. The events leading on from this

are what I believe is evidence that the Magistrates' conduct has been such to pervert the course of justice.”

2012

4. On 8 August 2015, the Appellant escalated his complaint to the AC to the Ombudsman:

“I wish to escalate a complaint to the Judicial Appointment and Conduct Ombudsman which was initially submitted to the Advisory Committee for Humber & South Yorks on 2 September 2014. The complaint has never been acknowledged and several enquiries as to why correspondence has been ignore (sic.). All efforts to elicit a response have been unsuccessful.”

5. In December 2015, the Appellant received a letter from the Ombudsman's office. The letter explained the Ombudsman's remit and asked the Appellant to confirm whether it wished the Ombudsman to consider issues relating to the delay by the AC up to that point. The letter stated that the Ombudsman could not consider the substance of the complaint made to the AC about the conduct of the Magistrates. In response, the Appellant confirmed that he wanted the Ombudsman to consider the process by which the AC had handled the AC Complaint.

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6.

On 23 February 2016, the Ombudsman's office wrote to the Appellant:

“Having considered the complaint file [held by the AC], I noted that the Advisory Committee had letters on file that were sent to you in response to your correspondence with them, the Judicial Office and the Judicial Conduct Investigations Office. I attach them for your perusal.

As your complaint to the Ombudsman related to the Advisory Committee not replying to or dealing with your complaint, I ask you to consider the letters attached and then advise me whether you wish to continue, close or amend your complaint to the Ombudsman.”

7. On 27 February 2016, the Appellant replied to the Ombudsman. He stated that he had not received the letters sent to him by the AC, nor did he receive the “final case stated” which had apparently been sent to him. The Appellant asked for an investigation into “why there was never a reply to several communications querying the missing document (final case stated), which according to the relevant procedure rules, should have been served on or before 10 September 2013”.

8. On 3 March 2016, the Ombudsman's office told the Appellant that the Ombudsman was not the appropriate body to take on his complaint about the missing Magistrates' Court document. It explained that the Ombudsman could only consider concerns about how the AC had handled the AC Complaint. Concerns about missing Magistrates' Court documents would need to be made to the Court Manager and escalated to the HM Courts & Tribunals Service (“HMCTS”) Complaint Handling and Enquiries Team. The Appellant challenged this assessment, arguing that the missing documents were “all tied in with the Secretary to the Advisory Committee's handling of my judicial misconduct complaint”. In particular, he alleged that:

“The answer is all probability lies in the fact that the final case stated has never been sent nor produced which can also be said of the 16 September 2014, 29 May and 6 July 2015 letters. On the balance of probabilities, these letters will have been produced in response to the investigation, which by your own admission took a significant amount of time to obtain from the Advisory Committee.

I appreciate the Ombudsman will have as his highest priority for you to find a get out clause, but these are issues that have arisen since the complaint was submitted in ”

September 2014 which fall under the Ombudsman jurisdiction

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9.

On 7 March 2016, the Appellant was informed that his complaint had been transferred to the Ombudsman's Investigating Team. The outcome of the investigation was sent to the Appellant on 23 May 2016. In his report, the Ombudsman concluded:

(a)

First, that he did not have jurisdiction to consider that part of the Appellant's complaint which related to the missing Court document (the appeal by way of case stated), because it did not concern the actions of a judicial office-holder.

(b)

Second, in relation to the Appellant's complaint about the maladministration of the AC Complaint, that there had been no maladministration by AC. The Ombudsman concluded that the Appellant had been sent a letter dismissing his complaint to the AC on three occasions: 14 September 2014, 29 May 2015 and 6 July 2015. The Ombudsman noted that one digit of the postcode had been wrong on each occasion, and suggested that it was unfortunate that the letters had not been sent by email, but this was not sufficient to amount to maladministration. The Ombudsman was also satisfied that the AC had correctly dismissed the complaint.

10. The Appellant raised some objections to the Ombudsman's conclusions on 24 May 2016, which were responded to on the same day. On 27 May 2016, the Appellant to the Ombudsman's office in the following terms:

“My suspicions are now confirmed that the Judicial Appointments and Conduct Ombudsman is an organisation put in place at the expense of the taxpayer to give the appearance that holders of judicial office are accountable 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 The deliberate postcode error was an obvious and half-heated 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”

The Appellant also pointed out various alleged factual inaccuracies in the Ombudsman's investigation report.

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11. Subsequently, the Appellant continued to pursue the matter through correspondence and requests for information under the FOIA in his own name and in the name of his alias “fFaudwatch”. For example, on 4 June 2016, the Appellant through “fFaudwatch” referred to his letter to the Ombudsman's office dated 27 May 2016 (see paragraph 10 above) and asked for disclosure of "who or what department dealt with" that correspondence: the JACO responded to that request. On 17 June 2016, the Appellant made a request for information in the following terms (having cited the Ombudsman's reports in his case):

“At what level of seniority within the organisation is this Failure / Corruption / Maladministration known about?”

12. In parallel with his correspondence with the Ombudsman, the Appellant also made complaints to the Ministry of Justice (“MoJ”), the HMCTS complaints team and the Parliamentary Ombudsman in the course of 2016. Through this correspondence, the Appellant received copies of seven further letters which he says that he did not receive from the Magistrates’ Court.

The FOI Request

13. On 29 October 2016, the Appellant made a freedom of information request to the Ombudsman's office in the terms set out in paragraph 4 of the DN (the “FOI Request”). In the FOI Request, the Appellant referred to “at least two cases” escalated to the Ombudsman from a Magistrates' Advisory Committee. First, the Appellant identified a reference in the JACO 2015/16 Annual Report to a case study in which the complainant had not received the AC’s letter dismissing his complaint. Secondly, he referred to an extract from the Ombudsman's investigation report in his own case. The appellant went on to ask for the following information:

“1) which Advisory Commissioner was referred to in the case study (Page 30 of the Annual Report 2015-16) and; 2) any other instances where the complainant stated similarly that they had not received correspondence from the Advisory Committee (and which one(s)).”

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14. The Ombudsman's office replied on 1 December 2016 and refused the request on the basis that it was vexatious within the meaning of section 14(1) FOIA. The reasons given were that:

(a)

The Ombudsman had advised on 23 May 2016 that there was no prospect of a finding of maladministration in relation to the AC's handling of the AC Complaint and that there was no realistic prospect of the Ombudsman altering his view.

(b)

The Appellant had continued to question the Ombudsman's conclusion in his case under the alias “fFaudwatch” until the 23 and 24 October 2016, and the FOI Request was sent five days later. In the view of the Ombudsman's office, the Appellant was seeking to use the FOIA to reopen and prolong correspondence into his complaint when it had already been concluded. There was no evidence to suggest that the information would be of wider significance.

(c)

The Ombudsman's office had responded to requests under the FOIA made by the Appellant, including under his alias, on 18 April 2016, 6 June 2016, 20 June 2016 (a request for comment), 28 June 2016 and 15 June 2016. Other requests concerning his case before the Magistrates had also been made to the MoJ, HMCTS and the relevant District Council.

(d)

Although the FOI Request did not itself contain unfounded accusations or personal attacks, the Appellant had previously suggested that the Ombudsman was biased (see paragraph 10 above).

15. The Appellant sought an internal review on 2 December 2016, introducing his request as follows:

“It is a reasonable assumption that the Judicial Appointments and Conduct Ombudsman simply doesn't want to disclose the information perhaps because it might raise questions about the honesty of staff employment within HM Courts & Tribunal Service. I suspect the extra time to provide a response has been needed to justify applying the vexatious tag. The elaborate response is in my mind a series of spurious statements which I hope the following demonstrates.”

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16. By letter dated 30 January 2017, the Ombudsman himself responded to the Appellant explaining his reasons for upholding the initial decision that the FOI Request was vexatious. On 17 February 2017, the Appellant complained to the Information Commissioner arguing that the section 14(1) FOIA had not been correctly applied.

17. On 5 July 2017, the Information Commissioner wrote to the Appellant and explained her preliminary view that the FOI Request was vexatious. The Information Commissioner reasonably proposed, having regard to the other section 14 FOIA appeals involving the Appellant before this Tribunal, that the matter should be resolved informally:

“As to the way forward here, I note that you have recently had a section 14 FOIA appeal to the Tribunal on a related matter turned down and understand that you have at least one other section 14 FOIA matter pending there. In the circumstances, I would like to invite you to agree that we resolve this matter informally for now by letting it rest here with the provision that, if the Tribunal finds for you on another section 14 FOIA matter, we will revisit this matter.”

18. The Appellant refused this suggestion. On 11 July 2017, he made further submissions to the Information Commissioner, which included copies of some of his correspondence with HMCTS. The Information Commissioner issued her DN on 26 July 2017, having taken into account the submissions of both parties.

C. THE MEANING OF “VEXATIOUS”

Section 14(1) FOIA

19. Section 14(1) FOIA provides that a public authority may refuse a request for information where that request is vexatious. The leading case on the application of section 14 FOIA is Dransfield. 2 In Dransfield, the Upper Tribunal, in a judgment late

2 See linked cases of Information Commissioner v Devon Country Council & Dransfield [2012] UKUT 440 (AAC); Craven v Information Commissioner & Department of Energy and Climate Change [2012] UKUT 442 (AAC) and Ainsline v Information Commissioner & Dorset County Council [2012] UKUT 441 (AAC).

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upheld by the Court of Appeal, 3 defined a vexatious request as one which is a “manifestly unjustified, inappropriate or improper use of FOIA” (at [43]).

20. The Upper Tribunal analysed the definition of “vexatious” by reference to four broad issues: (a) the present or future burden on the public authority; (b) the motive of the requester; (c) the value and serious purpose of the request; and (d) whether the request causes harassment of, or distress to, staff.

21. The Upper Tribunal emphasised the importance of viewing a request in its context. Thus, in relation to issue (a), the Upper Tribunal noted (at [29]; emphasis added):

“ 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 previous dealings between the individual requester and the public authority,

must be considered in assessing whether it is properly to be characterised as vexatious.”

22. In relation to (b), the Upper Tribunal explained that a request which may seem reasonable and benign “may be found to be vexatious in the wider context of the course of dealings between the individual and the relevant public authority” (at [34D. Similarly, in relation to (c), the Upper Tribunal said (at [38]; emphasis added):

“In some cases the value or serious purpose will be obvious - say a relative has died in an institutional setting in unexplained circumstances, and a family member makes a request for a particular internal policy document or good practice guide. On the other hand, the weight to be attached that value or serious purpose may diminish over time. For example, if it is truly the case that the underlying grievance has been exhaustively

is

considered

and

addressed,

then

subsequent

requests

(especially

where

there

“vexatiousness by drift”) may not have a continuing justification.”

23. Consistent with this analysis, the Court of Appeal held that the starting point for an assessment of vexatiousness is whether there is any “reasonable foundation for thinking that the information sought would be of value to the requester, or to the public or any section of the public” (at [68]). The Court of Appeal agreed that the previous course of dealings between the requester and the Authority could affect this assessment. Arden LJ, giving the judgment of the Court, said at [68]:

3 Dransfield v The Information Commissioner, Devon County Council [2015] EWCA Civ 454

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“ If a requester pursues his rights against an authority out of vengeance for some other

decision of its, it may be said that his actions were improperly motivated but it may also be that his request was without any reasonable foundation.”

D. THE FINDINGS OF THE INFORMATION COMMISSIONER

24. The Information Commissioner found that the Ombudsman had correctly refused the FOI Requests under section 14(1) FOIA (DN, §2). In reaching this decision, the Information Commissioner considered her guidance on vexatious requests, which reflects the judgment of the Upper Tribunal in Dransfield, 4 and asked herself whether the request was likely to cause a disproportionate or unjustified level of disruption, irritation or distress (DN §8). In order to do this, the Information Commissioner balanced the impact on the authority against the purpose and value of the request, having regard to the background, context and history of the request (DN, §9).

25. The Information Commissioner took careful note of the position of both the Appellant and the Ombudsman. The Appellant's submissions are summarised from paragraph 12 of the DN. In short, the Appellant's position was that the JACO had relied on section 14(1) FOIA to avoid embarrassing the secretary of the AC. He questioned whether his request would genuinely impose a burden on the JACO, and suggested that JACO did not want to disclose the information because “doing so might raise questions about the honesty of the Court's staff” (DN, §12). The Appellant also criticised the Ombudsman for having regard to his requests to other public authorities (DN, §l4).

26. The Appellant said that the Ombudsman had made a “fundamental error” by assuming that his motives were to obtain new evidence that might change the decision on his previous complaint: his reason for seeking the information was not vexatious (DN, §15). The Appellant suggested that the question should be whether he perceived the request to have a serious purpose; he believed that there had been dishonesty by public officials who had said that they had posted him letters when they had in fact been produced after the event (DN, §16).

4 Dealing with Vexatious requests (section 14)”,published on 20 November 2014.

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27. The Ombudsman's submissions are summarised from paragraph 17 of the DN. The Ombudsman explained the background context to the FOI Request (DN, §§ 17 to 18: see full summary at paragraphs 3 to 12 above). The Ombudsman confirmed that the matter of the missing AC letters had been referred for a full preliminary investigation (DN, §19) and that he had concluded that the missing letters had been sent by the AC (DN, 22). In these circumstances, there was no prospect that the Appellant's concerns about the Magistrates would be reconsidered (DN, §22).

28. The Ombudsman believed that there was “no significant wider public interest in disclosing the information request” and the FOI Request was made “to prolong correspondence” in respect of a matter that he had considered in full (DN, §21). The Ombudsman had considered the possibility that the FOI Request sought to explore an issue that might point to a systematic failing capable of wider public value. He had, however, rejected this possibility having regard to the full context, including the volume of requests made by the Appellant and his alias (DN, §24). The Ombudsman argued that the Appellant had established a pattern of abusing his rights to information in ways that imposed a disproportionate burden on public authorities (DN, §22).

29. Finally, the Ombudsman confirmed that, although he had received specialist advice from the MoD on the application of the FOIA exemptions, he had taken the decision to treat the FOI Request as vexatious independently of the MoJ (DN, §23).

30. After considering the position of both parties, together with the available documentary evidence, the Information Commissioner was satisfied that there was not a serious purpose behind the FOI Request (DN, §29). The Information Commissioner concluded that the FOI Request was “an attempt to use the FOIA regime to reopen and prolong correspondence in respect of matters that have been properly concluded by the JACO Ombudsman personally” and that this was “an abuse of FOIA” (DN, §29).

31. In reaching this conclusion, the Information Commissioner took into account:

(a) the absence of evidence to support the Appellant’s liberal “accusations of dishonest and malicious intent” by the Ombudsman and other public officials and members of the Courts and the Information Commissioner was satisfied, on

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the balance of probabilities, that the accusations have “no foundation in fact” (DN, §26);

(b) the

absence

of

evidence

to

support

the

Appellant’s

argument

that

the

Ombudsman is not independent from Government (DN, §27); and

(c) the wider background, context and history of the matter, including the “numerous other FOIA matters put to the public authorities and placed in the public domain by the [Appellant}, both in his own name and using an alias” (DN, §28).

E. THE GROUNDS OF APPEAL

32. The Appellant submitted his Notice of Appeal (“NoA”) on 2 August 2017. In the NoA, the Appellant argues that the FOI Request was not vexatious (DN, §4). The Information Commissioner understands the NoA to disclose essentially two grounds of appeal:

33. First, that the Information Commissioner erred in her conclusion that the Appellant’s allegation that Court staff falsely produced letters after the event was unsupported by evidence and had no foundation in fact (NoA, §§18-21).

34. Second, and relatedly, the Information Commissioner erred in her conclusion that the FOI Request did not have a serious purpose (NoA, §22). The Appellant contends that the FOI Request was not an attempt to reopen and prolong matters that had already been concluded:

“ [It] 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.” (NoA, §24)

The Appellant also points to the fact that HMCTS and other bodies are still involved as evidence that the matter has not been concluded (NoA, §24).

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35. In the first section of the NoA (§§5-17), the Appellant challenges the accuracy of the submissions made by the JACO to the Information Commissioner as summarised at paragraphs 17 to 25 of the DN (see paragraphs 27 to 29 above). This is not by itself a proper ground of appeal against the Information Commissioner's decision. The summary simply reflects what the Information Commissioner was told by the Ombudsman: it does not mean that the Information Commissioner accepted all of those submissions, or that they were all material to her decision. For the purpose of this appeal, the relevant question is whether the Information Commissioner's own conclusions, having had regard to the submissions made by the Ombudsman (and the Appellant), are correct.

36. Having carefully considered the submissions in paragraphs 5 to 17 of the NoA, the Information Commissioner considers that some of the points made are relevant to the question of whether the FOI Request had a serious value and purpose having regard to the relevant background and history. The Information Commissioner understands that the core argument made by the Appellant is that a proper understanding of the background demonstrates that the Appellant was not trying to use the FOI Request to reopen a matter that had already been dealt with. This ground of appeal is addressed in paragraphs 44 to 50 below.

37. For the avoidance of doubt, other matters addressed in the first section of the NoA – for example, whether the Ombudsman was right to suggest that the Appellant had sought to challenge a judicial decision other than through the Courts (NoA, §12) or whether the Appellant had issued a judicial review claim (NoA, §16) or entered into an agreement with the relevant District Council (NoA, §17) - are not relevant to the Information Commissioner's decision. These matters are therefore not addressed in this Response.

F. THE INFORMATION COMMISSIONER'S RESPONSE TO THE NOA

38. The Information Commissioner’s position is that the NoA does not disclose any basis for overturning the DN.

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The allegation that Court staff fraudulently produced letters after the event

39. The Appellant argues that the probability that 10 items of post 5 sent to his address were not delivered is “virtually zero”. He also argues that the content of the letters shows “glaringly obvious” irregularities, which support his argument that the letters were in fact produced after the event (NoA, §§20-21). The Appellant contends that, in these circumstances, the Information Commissioner erred in her conclusion that, on the balance of probabilities, the letters were sent to the Appellant.

40. 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:

(a) The Ombudsman concluded, in relation to the three letters from the AC, that these letters were sent to the Appellant (albeit that they were wrongly addressed): see paragraph 9(b) above.

(b) The HMCTS investigation team concluded in relation to the missing Magistrates’ Court documents that the relevant letters had also been sent to the Appellant: see letter from HMCTS to the Appellant dated 6 April 2017 (Exhibit 4 to the NoA) (emphasis added):

“You have said that you did not receive the court's letter of 19 December 2013 or the additional letters sent to you on 20 February 2014 and 1 May 2014. I am not doubting that you did not receive the letters through the post. I am sorry that this is the case but I have not seen any reason to believe that they were not posted to you.

Again, it is regrettable that you did not received (sic.) the court's response dated 22 July 2016 but I have not seen any reason to suggest that it was not posted to you in the normal way While I am satisfied that the letters on file would have been posted to you, it is my view that an alternative service method of the final case stated should have been considered after your third request for a copy had been received.”

5 The number of 10 is arrived at by adding together the three missing letters from the AC (see paragraph 9(b) above), which were the subject of the complaint to the Ombudsman, and the seven missing letters sent by the Magistrates' Court later discovered by the Appellant (see paragraph 12 above).

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41. In the light of these conclusions, and absent clear evidence to the contrary, the Information Commissioner was plainly entitled to conclude on the balance of probabilities that the missing letters were sent to the Appellant. This is particularly true given that the Appellant’s allegation is that all of the relevant public officials have committed a fraud by falsely creating letters after the event. Compelling evidence would be required to substantiate this claim.

42. The Information Commissioner has considered, for the purpose of this Appeal, the alleged inconsistencies in the missing Magistrates' Court letters set out in paragraph 21 of the NoA and the extract letter of 11 July 2017 to HMCTS exhibited to the NoA to which paragraph 21 refers. In her view, the errors highlighted by the Appellant suggest poor service on the part of the Magistrates’ Court but they do not support the allegation of fraud. This is consistent with the conclusion of HMCTS who offered compensation to the Appellant having regard to its conclusion in the 6 April 2017 letter (emphasis added) that:

you [i.e. the Appellant] have experienced a very poor level of service due to the way your correspondence had been handled. The court had a number of opportunities to clarify the position for you and, in the absence of doing so, it caused you a lot of frustration and inconvenience.”

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 9(a) above).

The purpose and value of the FOI Request

44. The Appellant argues that the Information Commissioner erred in her conclusion that the FOI Request had no serious value and purpose because it was an attempt to use the FOIA regime to reopen and prolong correspondence in respect of matters that have been

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properly concluded by the Ombudsman. The Information Commissioner understands the Appellant to put forward two related arguments in this regard:

45. First, the Appellant says that he is not attempting to open up the issue that has already been determined by the Ombudsman because the Ombudsman “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” (NoA, §24). In the Information Commissioner’s submission, this misrepresents the Ombudsman’s decision and the Appellant’s repeated objections to it.

46. The Ombudsman concluded that the three letters from the AC to the Appellant dismissing the AC Complaint were sent by the AC (see paragraph 9(b) above). This was contrary to the position taken by the Appellant that those letters were in fact produced by the AC after the event (see paragraphs 8 and 10 above), and the Appellant plainly does contest the Ombudsman's conclusion in this regard. This is evident from the Appellant’s correspondence with the Ombudsman after the conclusion of his investigation, for example in his statement that the Ombudsman had 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” (see paragraphs 8 and 10 above).

47. It is important to remember that it is this issue of missing AC correspondence that is the subject of the FOI Request. The FOI Request refers to the Ombudsman's report in the Appellant's own case, and asks specifically about instances where a complainant has not received correspondence from an Advisory Committee (see paragraph 13 above). This request for information obviously relates to the Appellant's own complaint before the Ombudsman and, in particular, his view that the Ombudsman wrongly found that correspondence from the AC had been sent to the Appellant even though he did not receive it. That complaint has been conclusively determined by the Ombudsman and will not now be reopened.

48. Second, the Appellant argues that the matter to which the FOI Request relates has not been conclusively determined because of “HMCTS’ involvement and other public bodies which are still involved”. The Information Commissioner does not know which other

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public bodies the Appellant is referring to. The reference to the HMCTS investigation is, however, misleading. HMCTS is not determining the question of whether the letters produced by the AC were in fact sent to the Appellant (or whether, as the Appellant contends, they were fraudulently created after the event). HMCTS has considered, and may still be considering, whether the documents produced by the Magistrates’ Court – in particular the material concerning the appeal by way of case stated – were sent to the Appellant.

49. The Information Commissioner understands that the Appellant considers that there is a link between the missing AC documents and the missing Magistrates' Court documents (see, for example, NoA §15). In the Information Commissioner's submission, however, the Appellant's pursuit of his complaint about the missing Magistrates’ Court documents is not relevant to the Information Commissioner's decision in this case. The FOI Request and the DN relate only to the missing letters sent by the AC. The Information Commissioner has rightly concluded that the subject of the missing AC letters has been finally and conclusively determined by the Ombudsman. The NoA does not disclose any error in this regard.

50. 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. The case study in the 2015-16 Annual Report referred to by the Appellant in the FOI Request raised a similar issue to that which had arisen in his own case, i.e. a complainant had not received a letter from an AC dismissing the complaint. The FOI Request also referred directly to the Ombudsman's report in his own case. 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.

51. Accordingly, having regard to all of the context, in particular the fact that the Appellant’s own complaint before the Ombudsman has already been exhaustively considered and determined, the Information Commissioner rightly judged that the FOI Request was vexatious within the meaning of section 14(1) FOIA.

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G. PROCEDURE

52. The Information Commissioner notes that the Appellant has indicated that this case can

be considered on the papers. The Information Commissioner agrees that this is the

appropriate course of action in this case. The Information Commissioner would,

however, be happy to provide any further assistance required by the Tribunal.

DAISY MACKERSIE

Monckton Chambers

8 September 2017

Name and address of Respondent / Address for service:-

Jenny Roe Information Commissioner's Office Wyc1iffe House Water Lane Wilmslow Cheshire

SK95AF

Email: jenny.roe@ico.org.uk

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