The Savile Tapes – ICO says request for audio was vexatious

There is no index of character so sure as the voice – Benjamin Disraeli, Tancred

In October 2013 Surrey Police disclosed, in response to a request made under the Freedom of Information Act 2000 (FOIA) the transcripts of police interviews (under caution) of Jimmy Savile. The Information Commissioner’s Office ICO) has now ruled on a related request, which was for the actual audio recordings of the same interview, and, rather surprisingly, the ICO has agreed with the Police that they did not have to comply with the request, on the grounds that it was vexatious.

Until relatively recently it was difficult to rely on section 14(1) of FOIA (“a public authority [need not] comply with a request for information if the request is vexatious”) simply because the costs burden of dealing with it was too great. The ICO’s guidance did advise that one of the factors to bear in mind when considering whether a request was vexatious was “Would complying with the request impose a significant burden in terms of expense and distraction?”, but in general, for a public authority to refuse to comply with a FOIA request because of the costs, it had to be able to claim that the cost of compliance exceeded the appropriate limit (section 12 FOIA). However, a decision of the First-tier Tribunal (FTT) in 2012 appeared to shift the ground somewhat. Although FTTs’ decisions are not precedent, it was notable that a public authority (the IPCC in this case) was said to be entitled to rely on section 14(1) on the basis that

A request may be so grossly oppressive in terms of the resources and time demanded by compliance as to be vexatious, regardless of the intentions or bona fides of the requester. If so, it is not prevented from being vexatious just because the authority could have relied instead on s.12

As the always-excellent Pantopticon blog said at the time

This will be welcomed by those who find themselves unable to rely on section 12 due to the restricted list of activities which can be taken into account for cost purposes

but the context in that particular case meant that, in fact, the intentions and bona fides of the requester were relevant

The present requests were, in our opinion, not just burdensome and harassing but furthermore wholly unreasonable and of very uncertain purpose and dubious value…We are by no means convinced of [the requester’s] good faith in making it

In the leading case on section 14(1) – IC v Dransfield [2012] UKUT 440 (AAC) – Wikeley J said that it was helpful, when considering whether a FOIA request is vexatious, to consider four “broad issues or themes”

(1) the burden (on the public authority and its staff); (2) the motive (of the requester); (3) the value or serious purpose (of the request) and (4) any harassment or distress (of and to staff)

but that ultimately, the test amounts to

is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA?

The ICO’s guidance, amended in light of Dransfield reframes this slightly and says that the

the key question a public authority must ask itself is whether the request is likely to cause a disproportionate or unjustified level of disruption, irritation or distress

The ICO draws on this guidance in the Savile decision, but, notably, appears to give considerable credence to the police’s evidence regarding the disruption – the burden – that redacting the audio of the interviews would cause, but does not appear to have interrogated this assertion in any depth. Moreover, the ICO notes its lack of expert knowledge on the subject of redaction, but nothing (other than, presumably, limited resources) prevented it from consulting an expert. Given that this appears to have been the primary evidence for the finding of vexatiousness (the ICO accepted that the requester’s motives were not intended to cause disruption or harassment) and given that the ICO accepted that there was a “qualitative difference” between the written transcripts and the audio (“The speed, volume, expressiveness and intonation of the actual speech may be considered to shed more light on how Savile responded to what was put to him in the interview”) it is difficult to see how the ICO decided that request could have been vexatious, rather than just of a level of annyoance and disruption it accepts a public authority must absorb. The request, using Wikeley J’s formulation, was not improper, it was not inappropriate – and was it really, therefore, a “manifestly unjustified use of FOIA”?

One hopes the bar of vexatiousness has not been lowered too far.

 

31 Comments

Filed under Freedom of Information, Information Commissioner, police, vexatiousness

31 responses to “The Savile Tapes – ICO says request for audio was vexatious

  1. Alan M Dransfield

    THE ICO are bending over backwards to accommodate section 14/1 vexatious exemptions.

    It beggars belief they are relying on the Dransfield Case which is still LIVE and due before the Court of Appeal next Jan

    • Haven’t we had this discussion in the comments before? ICO is not just entitled, it is obliged, to follow the Upper Tribunal’s decision in the Dransfield case, unless or until it is struck down by a higher court. The effect of a ruling is not put on hold pending an appeal (unless the ruling court makes clear that is, which didn’t happen in this case).

  2. Alan M Dransfield

    Please see my comments to the so called Number 1 FOIA Campaigner in the UK Maurice Frankel.
    The Dransfield Vexatious Decsion is not worth the paper it is written on.
    We now have another Secret Service Exemption get out out of jail free card from the ICO,i.e DO NOT HOLD.
    UK FOIA Campaign

    Dear Maurice

    It would appear to me that the ICO have been pushing for TWO)(2) major exemptions in the FOIA 2000 in recent months..
    Firstly, they have spent thousands of pounds on new guidelines for section 14(1) vexatious exemption under GIA/3037/2011 Dransfield v ICO.
    Secondly, they have also been pushing to support DO NOT HOLD exemptions.

    Both of these exemption are, at best ludicrous, and at worst, tools to assist the passage of fraud and pervert the course of Justice.

    What concerns me greatly, it the SILENCE from your office,hence,I must assume you support the ICO with such arbitrary decisions.

    Hence, Rogue Public Authorities now have TWO Get out of Jail Free Cards:
    1.Vexatious as per the Infamous Dransfield Case GIA/3031/2011
    2.. Do Not Hold.

    It is all well and good for these PA to claim ” we do not hold the sought after information,”.
    They bloody well should hold it. The UT recently upheld a DO NOT HOLD EXEMPTION from the House of Lords against Dransfield, which was also upheld by the ICO/FTT.
    If a PA are duty bound to hold the sought after data, they MUST HOLD IT , they cannot simply claim DO NOT HOLD.

    In my view the ICO/FTT and the UT are bending over backwards to support DO NOT HOLD exemption.

    Yours sincerely

    Alan M Dransfield.

    • Alan,

      You, and all other users of FOI, owe more to Maurice Frankel than you can imagine. In fact, without him, there might not even be an FOI Act.

      Regarding the “not held” cases, the law is clear – the ICO cannot make a determination on whether a public authority *should* hold information – it can only decide, on the balance of probabilities, whether the information *is* held or not.

  3. Alan M Dransfield

    Absolute nonsense about Do Not Hold.
    PA ‘a have a legal obligation to hold some information. Take the House of Lords decision 2 weeks ago with me when they claimed they did not hold the Lightning Risk Assessment. There/ were duty bound to hold it. Maurice Frankel is sleeping in the same bed as the ICO.Ditto for his side Kick Tool Time Timmy Turner.
    Can you tell me why 90% of the ICO decisions uphold the PA decision.
    The ICO are the gamekeepers of the FOIA 2000. I suggest they are the biggest poachers.
    How the hell they can claim independence is beyond me because they are investigating themselves.
    You appear to be v cosy and defensive of the ICO?????

    • Please don’t try to turn this into a slanging match. And I emphasise, Maurice Frankel is a good man – warrantless criticism of him is a really poor show.

      You say it’s absolute nonsense about “not held”. Are you saying that because an authority has a duty to hold information it therefore must hold it? Drivers have a duty to hold a driving licence but many don’t.

      There are legal mechanisms to deal with people who don’t hold driving licences when they should, just as there are legal mechanisms to deal with public authorities who don’t hold information that they should, but the Freedom of Information Act is not one of them: it deals with the factual question “*does* the authority hold the requested information?” not “*should* it hold the requested information?”

      If be interested to read the strike out decision in your appeal – I suspect the Upper Tribunal won’t upload it (they don’t normally do so with strike outs) I’d be happy to host it here if you want.

      • Alan M Dransfield

        I will send you a PDF copy of the UT determination which I have now requested a JR.
        Your amplify ref the driving licence crashes on take off because the PA SHOULDHOLD the information which they claim they don’t hold.
        That being the case why have a FTT or UT if these rogue PA are reliant upon DO NOT HoLD. They bloody well should Hold.
        Let me give you another classic example of DO NOT HOLD bull—/
        The Birmingham NH Trust for the£ 2.5 billion Queen Elizabeth Zhospital refused my FOIA request for a Copy of the As Built Health and Safety Files and they claimed they do not hold.
        They are obligated to hold this information hence my FTT were negligent in not finding that out.
        Are you not going to respond to my question why 90% of the ICO are in favour of the PA. Strange that isn’t it

      • There is no legal mechanism in FOIA whereby the ICO or the FTT or any court can tell a public authority to hold information it does not hold. You would have to bring a different legal claim to get an Order requiring a public authority to hold information it is not holding, probably a judicial review claim.

        I haven’t answered your point about a 90% figure for not upheld complaints because it’s not one I recognise – a quick check of the decisions database shows figures of 4430 complaints not upheld from 01/01/2005 to date, 3806 upheld and 628 partly upheld. Do you have a citation for your figure?

        Thanks for offering to send the PDF of the recent decision, I’ll email you my email address.

      • Alan M Dransfield

        I beg to differ, the FOI is the right mechanism to obtain the truth about DO NOT HOLD exemption.
        In essence the GTT and UT are turning a blind eye to wilful circumvention of the FOIA 2000 and section 77 in particular.
        Any PA relying in DO NOT hold when in fact they DO HOLD is perverting the Course of Justice.
        Let me give you an example : joe Bloggs submits a FOIA request to Devon County Council for a copy if their Public Liability Insurance Certificate and the DCC claim they DO NOT HOLD the Insurance Certificate.
        Don’t you think the ICO/FTT/UT know they should hold it.
        What’s the point of the ICO/FTT/UT if they are not aware of legal obligations

  4. Alan M Dransfield

    My Court of Appeal Case is scheduled for the 27/28th Jan (tbc).
    This is a Test Case to argue the definition of section 14 (1) VEXATIOUS.
    To think the FOIA 2000 has been in operation for a decade WITHOUT a clear Legal Definition is somewhat disconcerting,don’t you think.

    In the event Dransfield loses his Court of Appeal in a couple of weeks time Joe Public will be gagged FOREVER. Not unless ,of course Strasburgh overturn the UK Laws but that’s another story for the not too distant future.
    I do not want a Dransfield Legacy that allows the Gagging of Joe Public, I wish to have a Legacy in which Dransfield was the Saviour of the FOIA..

  5. Hi Alan, thanks for the comment. I’ve got to say though, I think you’re overegging your own pudding – lots of terms in statutes don’t have a definition, and it falls to the courts to define them. For instance, what is the definition of “reasonable” in section 14(2)? The Act is silent on this.

    I know you feel very strongly about your case, but lose or win it will just be a decision on how the Act should be applied to specific facts. I happen to think WIkeley J’s judgment in the Upper Tribunal was excellent, and it’s hard to see how it can be overturned, but let’s see.

  6. Alan M Dransfield

    7 BR Solicitors London

  7. Alan M Dransfield

    THE COURT OF APPEAL jUDGES ARE STILL CONSIDERING THEIR FINAL DECISION.
    LETS HOPE THE VEXATIOUS BAR IS NOT LOWERED TOO FAR TO ALLOW PERVERTS SUPPORTING THE LIKES OF JIMMY SAVILLAE ARE ALLOWED TO CRAWL UNDERTHE LEGAL BAR

  8. Is Savillae the latin form of Savile?

  9. Alan M Dransfield

    The Vexatious bars has not been lowered, it has been removed completely

  10. Alan M Dransfield

    No I haven’t received the decision from the CoA yet but my statement above is made by virtue of the fact the ICO have made approx 350 vexatious decisions based on the Dransfield Vexatious decision which quite frankly beggars belief. I could be forgiven in thinking the ICO remit was to protect the FOIA 2000.
    The FOIA is currently in the last Chance saloon and only Dransfield can be the Saviour??!!

    • Thanks. We’ve discussed these figures before though. As at today’s date there have been, since the Upper Tribunal handed down its ruling in your case, 243 ICO decision’s not upholding complaints about use of FOIA s14(1) or EIR 12(4)(b) (not 350). In the two years prior to that the figure was 169. It’s an increase (and one would certainly expect that, after a key ruling in an appellate court) but it’s not huge.

      I think this is an important issue, and yours is an important case, but to talk about last chance saloons, and being a saviour, is hyperbolic.

    • Alan – I’ve deleted your last message, as it is defamatory of the ICO. Given that you don’t want to discuss statistics I’m not sure there’s any point continuing the discussion.

      • Alan M Dransfield

        No wonder you are big buddies with Timmy Turner. It my ball ,bat and wickets and I am going home.
        BTW
        un·im·peach·a·ble (ŭn′ĭm-pē′chə-bəl)
        adj.
        1. Difficult or impossible to impeach: an unimpeachable witness.
        2. Beyond reproach; blameless: unimpeachable behavior.
        3. Beyond doubt; unquestionable: “works of such unimpeachable greatness”

        You think this applies to the ICO,yeah, right.

      • I allow all comments on my site, including ones critical of me, but I will not expose myself to legal risk. You are free to do that on your own site.

        I’ve no idea what Tim Turner has to do with it. I’ve also never said the ICO is unimpeachable – have you read some of the other posts on this site?

        What I did say once was that I thought the decision of Wikeley J in the Upper Tribunal was pretty unimpeachable. I stick by that. If you win in the Court of Appeal I will happily review my position.

      • Alan M Dransfield

        so lets wait and see what the CoA say.

  11. Alan M Dransfield

    Court of Appeal due to release their decision by the end of the month

  12. Alan M Dransfield

    sorry for the late update but the Court of Appeal upheld the UT Vexatious decision,hence, it has rubber stamped the gagging of Joe Public.
    The Tory Party is behind this and they wont be happy until they have quashed the HRA AND the FOIA 2000.
    The latest two PA’s to jump on the Dransfield Bandwaggon are the Law Society and the Legal Ombudsman.

  13. Alan M Dransfield

    It’s such a shame you closed the comments on this page. The CoA have now released their decision on the INFAMOUS Dransfield case C3/20133/1855 Dransfield v ICO and quell surprise they upheld the Wikeley Vexatious decision.
    This decision GAGS JOE PUBLIC and its the date the FOIA Died.
    Any rogue PA including the Law Society or the Legal Ombudsman can rely on the Dransfield Case as a Court Authority when they want to hide something.
    It has been reported also that the ICO have hacked into an American Journalist website and screwed up his Online Magazine so I have heared it said??!!. I am sure the FBI will be looking into this shortly.

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