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:

Appellant

- and -

THE INFORMATION COMMISSIONER 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 2nd November
2012 ... 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.”

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
considered and addressed, then subsequent requests (especially where there is
“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

10
 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 post5 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

14
 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

15
 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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