Monday 6 May 2013

An arbitrary exercise of power

It is no secret that there is no love lost between fellow blogger Jacqui Thompson and a handful of people at the top of Carmarthenshire County Council, and the council has fired the latest shot in its battle to silence her and her blog by branding a Freedom of Information request as "vexatious" as a justification for refusing it.

You can read the background to the request and its already lengthy history on Jacqui's blog here, but in summary the request for information on the council's dealings with Towy Community Church was first rejected by the council, then rejected again on appeal, before the Information Commissioner ruled that the council had been wrong to reject it on the grounds stated, and the process began again.

Ever resourceful, the council has combed through the Act and now hit upon Section 14 (1) which says simply that a request may be rejected if it is considered to be vexatious. The Information Commissioner has provided a handy set of guidelines as to what constitutes a vexatious request for those dealing with FOI requests here.

The first key point is that the council may not dismiss a request because it considers the person making the request to be vexatious. The council has to show that the request itself is vexatious.

Reading through the guidelines, it is hard to see how the council will be able to make its decision stand as it fails just about all of the Commissioner's tests, but the one straw it is likely to cling to is that "it may be reasonable for the authority to conclude that a particular request represents a continuation of behaviour which it has judged to be vexatious in another context and therefore to refuse the request as being vexatious".

In other words, we can expect County Hall to argue that the request for information about the council and the church is linked to the dispute which boiled over in the recent libel trial.

The problem with that is that the Commissioner says an authority should not declare a request to be vexatious if it would supply the information to someone else who was not known to it.

This raises the interesting question of whether the rejection is just part of the ongoing war between Jacqui Thompson and the Chief Executive, or whether the council is using that dispute as a pretext for refusing to disclose information it simply does not want the public to see because it may contain embarrassing revelations about how the church came to benefit from so much council money.

Freedom of Information requests to Carmarthenshire County Council are handled by Mr John Tillman, an officer in the Chief Executive's department who is unfailingly polite and, the evidence suggests, inclined to favour openness and transparency. The problem he has is not so much unreasonable, frivolous or vexatious requests from the press and public, but interference from within County Hall to prevent the release of information. In one case, for example, a senior officer put pressure on a newspaper editor to get a request for information about senior officer pay withdrawn.

My initial reaction when I read about the rejection of Jacqui Thompson's request was to hope that the press and other investigative journalists would take up the baton and submit requests for this information. After all, there has been a lot of interest in this story in the media, and there are many people in Carmarthenshire who feel very strongly about the generosity showered by the council on this particular evangelical group.

For the time being, however, a wiser course may be to let this dispute play out in the wider interests of transparency and public accountability, because what we have here appears to be an arbitrary decision which goes against the letter and spirit of the Freedom of Information Act and the way it has been implemented. This must be challenged.

Jacqui will now need to request an internal appeal, which if past performance is anything to go by will almost certainly result in yet another rejection, before taking the matter back to the Information Commissioner who may begin to wonder what on earth is going on in Carmarthen.


Plaid Gwersyllt said...

This is a repeat of the original request, if the first request wasn't refused on vexatious grounds how can this one be?
I would be going straight back to the IC with this one and asking for a decision notice. CCC are on very dodgy legal grounds here. Basically CCC are ignoring the findings of the IC and it is now the IC v CCC at a First Tribunal hearing

Mr Mustard said...

I am a few months ahead of Jacqui in the battle for info. I wonder if when FOI officers from across the UK get together they hatch plans for how to avoid replying.

In my case in September / October 12 Barnet Council started to make each of my new FOI requests (generally one a day) vexatious and that only stopped once I stopped submitting requests as after 23 refusals it was looking pretty pointless. I am waiting for the ICO to look at my complaint. Interestingly Barnet are now on the ICO naughty step for failure to respond within 20 days and they answered one of my questions last month. I sent in a question about credit card commission, which I fully expected to be refused, as a business as usual question to the man who I thought was the S151 Officer (and no longer is) and the question was turned into an FOI and answered the next day! I wonder if there is an attempt to appear more reasonable. I now know that Barclays get 1.8% which I would have thought was commercially sensitive but there you go.

The reason I know that my questions are not vexatious is that the first one rejected was then asked in identical terms by my London Assembly representative and it was answered in full and on time.

The second reason is that if I use a false name my questions get answered.

The third reason is that the questions are really dull, about parking tickets and the like.

I also have a case in front of the First Tier Tribunal. Barnet Council have refused to tell me the job titles (not the employee names which I did not request) of the 40 members of staff who spent a week ensconced at Trowers and Hamlins scoring the NSCSO tender which we now know was won by Crapita. The ICO said I was to be told and Barnet have appealed. This should be decided soon.

It looks like we bloggers tread common paths at different times. We also help each other with advice and Jacqui knows where to find me as do you as I think I put my card in your hand at the Royal Courts of Justice.

I saw my lawyer earlier and I asked him what a council should do about bloggers. He said the trouble is they don't like scrutiny so we can't expect a cessation of hostilities any time soon.

Fight the good fight.

Yours frugally

Mr Mustard

Anonymous said...

CCC and honesty again!!! How pathetic they have become! Thanks for FOI info, much needed I have been refused plenty of requests all for pretty trivial reasons.

As for giving a different name Mr.Mustard and getting a response. I would say that is direct discrimination! There must be a case for the ombudsman etc! It seems once we have asked some questions that CCC do not want to answer, we are blocked on almost every level. It is such a shame CCC have their own set of rules.

Vexatious is by far the best FOI refusal excuse ever. I do feel that maybe those at the top of the tree may be a little worried of exposing themselves . . . . No pun intended!! Ha ha

Anonymous said...

Why I am I not surprised!! They make it up as they go along.If everything was above board they would be more than willing to prove you wrong.