???!!!

I was originally going to write a blog about why I was opting out of the care.data process, but as I was struggling to make it work, Jon Baines tackled the same subject from the same perspective and got it note perfect. It is spoiled only by some twit who can’t even write a comment competently. You should read it (the blog, not the comment). As I went to delete my version, I found something I wrote before Christmas, and decided not to publish because I thought it might annoy a group of people amongst whom I am already unpopular.

On reflection, there is no better reason to publish anything. So here goes:

For several months, the blogger Mike Sivier has been writing about his attempt to get information from the Department for Work and Pensions about mortality statistics for people undergoing the assessment procedure for Employment and Support Allowance. Sivier’s case is that the DWP’s processes are drawn-out and stressful, and directly or indirectly lead to the deaths and suicides of applicants. Last month, Sivier received a decision from the Information Commissioner upholding the DWP’s decision that his request was vexatious. DWP claimed that Sivier’s request was part of a deliberate, orchestrated campaign to inundate the Department with requests on the topic, and the ICO agreed.

When Sivier wrote his blog in June announcing his intention to make the FOI request, he ended it with these words (his emphasis). “I strongly urge you to do the same. There is strength in numbers.” As he noted later, the comments underneath that blog warmed to the theme, with one person talking about swamping DWP with requests. While waiting for his request to be answered, he followed up with these comments about Iain Duncan Smith:

“If a person knows that their actions are causing people to die, and does nothing about it, then an observer may rightly conclude that this person wants those deaths to take place. There’s a word for people who cause others to die – with the intention of causing them to die.

That word is “murderer”.

Or in this case, “mass murderer”.

The net is closing, Iain Duncan Smith.

And just in case that wasn’t enough:

And to any DWP interlopers, reading this site because it is on a ‘watch list’: This is a very dangerous time to be working for that organisation. People who help others to commit murder are accessories to the crime and may also be convicted for the offence.

I regret to say it, because I think the DWP’s policies are uncivilised and inhumane, and I would like to see FOI used to establish this. But Sivier’s request was doomed from the outset. An orchestrated campaign and statements like those above is all the DWP needs to refuse, and all the ICO needs to concur. Not only will Sivier almost certainly never get his information, anyone else who asks will be probably get refused as well. Sivier’s obvious sincerity about the issue may persuade the Tribunal, but it’ll be a long time in coming, even if it happens. I think people should be entitled to insult politicians. But it may kill their opportunity to make FOI requests if they do, so it should not be done idly.

I was not unhappy when Alan Dransfield’s health and safety bandwagon came spectacularly unstuck at the Upper Tribunal; I thought it was the right decision. I think many of the ICO and Lower Tribunal decisions made in Dransfield’s wake are correct. Mr Dransfield regularly sends me angry and accusatory emails in the early hours, so my schadenfraude is already being punished. Nevertheless, campaigning FOI applicants have to accept a new reality, no matter how public-spirited their intentions. The FOI scales are now gently tipped in favour of the public authority. I’ve written an article for the Guardian’s website saying that this is a good thing, and I stand by that. But Dransfield – the case and the man – have made FOI requesting a minefield for the campaigner. It’s clear that the decision will result in more refusals, a few of which may not be justified, especially as the ICO is chiefly interested in clearing up and preventing backlogs. They will probably seize the opportunity to uphold competent vexatious refusals as a way of closing cases and meeting targets.

Look at the ICO guidance, which reflects the Upper Tribunal decision, but is a potential goldmine for hair-trigger refusals. Vexatious is not an option only for the most extreme of cases (p3) and a request can be rejected if it can be said to have a disproportionate or unjustified effect (p6). The list of indicators of a vexatious request is long, and includes ‘unreasonable persistence’, ‘intransigence’, ‘personal grudges’ and ‘unfounded accusations’. If you make an FOI request, you need to know this list just as well as the FOI officers at whom it is aimed, and avoid the pitfalls it describes.

So make a choice, FOI applicants. Do you want to get information or make accusations? You can make noise with the information you get, but that may be less fun. You can write endless blogs about how you have been denied the truth if you’re refused as vexatious, but frankly, you’re going to end up sounding like a flat-earther. Facts do sometimes get ignored, but harsh words and strong opinions may kill your request.

FOI is a means to an end. If you are campaigning, the FOI request is how you get the information to make your point. Making an FOI request itself makes no point at all. If you lose sight of this, you’re sunk. If you send off your FOI request with trumpets and fireworks, it looks like you want attention, not information. I’ve been guilty of this myself occasionally, and I won’t make that mistake again. No matter how strongly you feel about your issue, if you accuse people of being murderers and criminals, the ICO guidance will work against you. It does not matter if you think this is right or wrong; no amount of FOI requests and blogging will change it.

I wonder whether some applicants load their FOI requests with polemic on the basis that because an FOI request has to be read in order to be answered, it’s a way of forcing their foes to read their views. Doing it on What Do They Know only increases the sense of theatre. This is pointless. Most of an FOI request is read only by the FOI team. S0me FOI officers don’t even reveal the applicant’s identity to their colleagues, so why would they share the paragraphs of bile?

A senior officer is much more likely to see a complaint or a press story than the full text of an FOI request. An enthusiastic campaigner recently wrote about an encounter with a senior officer who had been dealing with his requests, deriding the idea that the person concerned failed to recognise his nemesis. But I believe the officer. I bet most FOI applicants are indistinguishable from each other when you’ve got more than a thousand requests a year to deal with. Senior officers in the public sector spend their entire lives having fingers metaphorically and literally jabbed in their faces. Sometimes they deserve it, often they don’t. But the crucial thing is that most of them get used to it. In my time as a relatively junior FOI officer, I was accused of corruption, conspiracy, and wilful neglect of social care clients (NB, I am not a social worker, was not one when this accusation was made and the people in question were not social care clients). I’ve been called a Freemason, a shit-shovelling lackey, and a murderer. I deleted the emails or put the phone down. Nobody loses sleep over what the What Do They Know Warriors think of or say about them, and if you think your targets are any different, you’re kidding yourself. Applicants who load up their FOIs with invective are pouring it over the heads of the FOI officers and no-one else. At worst, they’re making life tiresome for people who may be among the few in the organisation who might conceivably be on their side.

If all you’ve got is strong opinion, you might as well be walking around the headquarters of your target organisation with a placard. Here’s a tip; nobody in the organisation cares and all the passers-by think the guy with the placard is mad. This is where FOI comes in. It gives you facts. With facts, your campaign has a spine rather than just flapping around for the sake of it. This is is true whether you are a minor league blogger, a high-profile campaigner, or a journalist. The facts may not make a difference; your target may be impervious to criticism now matter how well-founded. Look at Hillsborough. Everyone knew what the truth was, but only the Hillsborough Independent Panel forced the deniers to eat their lies.

Decide what you’re doing; if you want information, you’re more likely to get it without a crowd-pleasing running commentary. If what you want is the opportunity to bang on about whatever it is that bothers you, enjoy your freedom of speech. But don’t be surprised if you end up closing off your opportunity to make FOI requests.

And before I depart, a quick summary for those that do want to make effective requests:

1. Decide what information you want. Ask for it. If your request has an introduction, a prologue, footnotes, and great rhetorical flourishes, cut them out. Nobody cares. And if you really believe there is a conspiracy, why not try slipping your request subtly under the radar, rather than using the FOI equivalent of a skywriter?

2. Avoid sensational language, as it plays into a vexatious refusal. If you can’t prove ‘corruption’, ‘lies’, ‘incompetence’ (NB: proof is not the same as strong belief), keep that to yourself, at least until after you’ve made the request.

3. Do not encourage others to join in with your crusade. You cannot manufacture the public interest. If lots of people spontaneously make requests, that is evidence of genuine public sentiment, but anything deliberate will be refused.

4. Vexatious has no public interest test. Neither does the FOI cost limit. It is entirely legally correct to leave these considerations aside when using those provisions, and a refusal will not be overturned because the public interest was not looked at.

5. The ICO is not, and is not supposed to be, the people’s champion. The Tribunal will make only limited concessions to the applicant representing themselves. FOI is a legal process. Take it, yourself and your campaign seriously.

Comments

  1. While hindsight suggests you are right in some of your conclusions about what the DWP and ICO will do, it is important to bear in mind that there is no such thing as a vexatious requester – only a vexatious request.

    I am perfectly entitled to express my feelings about Iain Duncan Smith or anybody else on my blog and there is nothing that he or the DWP can do to prevent it – nor does it entitle them to block any FoI request I submit, as long as the request itself is made in a reasonable manner, as mine was.

    The encouragement for others to do as I had done – if they felt the same way and wanted the information to bemade available – was not something I would repeat now and is a product of inexperience with the system. That being said, anybody who did follow that suggestion did so of their own accord; suggesting this was an orchestrated campaign is blowing it out of proportion.

    Public interest IS a factor in the determination of these requests. It is relevant when considering the context of the request, and the guidance on dealing with vexatious requests (from the ICO) states that a public authority may take this aspect into account.

    I’ll leave it there – obviously I have other arguments to put before the tribunal in the spring.

    • My point is that anything beyond sending in an FOI request is risky, especially after the Dransfield case. As far as the public interest test goes, unlike any of the qualified exemptions, a public authority does not have to do a public interest test, but many applicants think they are at fault when they do. Having said that, good luck with your Tribunal case. The information should be in the public domain.

    • Ganesh Sittampalam says:

      Unfortunately the Salford University case (http://www.panopticonblog.com/2011/08/18/vexatiousness-in-context-ratcatcher-and-others/) does set something of a precedent that encouraging multiple requests is vexatious, though there was also evidence of malicious intent in that case.

      • I think that aspect of the Salford case is correct. I don’t think an FOI request should be treated like a petition, with its worth measured by how many people join in.

  2. On the above evidence…
    I fear there’s something awry with you. Er… cognitively.

  3. The meaning of “vexatious” is troublesome, annoying, irksome. There is no doubt that a FOI request is all of those things for a public authority, but should not be the reason why information is not released. Parliament has expressly declined to define the term vexatious. It is a flexible concept and takes it’s meaning from the context in which it appears.
    Judge Wikeley offers guidance on this point in paras 28, 39 and 43 of Dransfield.
    He states “is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA?”
    He also goes on to warn public authorities not to use S14 as a means of forestalling genuine attempts to hold them to account.
    There is overriding public interest here; the Atos contract is £112.4 million all paid for out of the public purse. The public have a right to know if welfare reform is equitable and offers value for money

    • I take your point about the public interest, but I maintain that accusations and hyperbole play into the hands of public authorities, even if you think that this should not be the case. Applicants need to take this into account.

      • Hi Tim,
        I note what you say and I really don’t want to labour the point, but it is my firm belief that DWP do not want to release the mortality statistics for IB to ESA migration because the death rate has risen so dramatically.
        I base this opinion on the initial request from Samuel Miller, which pre dates that of Mike Sivier by some 7 months.

        http://mydisabilitystudiesblackboard.blogspot.co.uk/2013_06_01_archive.html

        David Frazer (Director Governance, Security & Information of DWP) answered questions at a DWP select committee
        Q7 Chair: I saw recently that there had been a freedom of information request, but the reply came back saying that as it was a vexatious request, the Department was not going to provide the information. Who would make that decision?

        David Frazer: There can be judgments made along those lines. In the first instance, officials will look at what the request is. They will look at whether it can be produced at proportionate cost to what it is and make that kind of further judgment. Eventually, it will be down to Ministers to make the call.

        Q8 Chair: The Minister themselves would make the decision.

        David Frazer: Yes, but I will have to confirm that for you. Do you have a specific case in mind you would like us to look at?

        Chair: I received a copy of it yesterday, but I cannot remember all of the details. The reason given for not providing information was the person asking it had mentioned something on a blog and therefore it was interpreted as being vexatious, so they would not supply the information.

        David Frazer: That is fairly rare.

        Could he be pointing towards ministerial veto?

        Also, if DWP/ICO are trying to imply that Mr Sivier is some kind of agent provocoteur, then why (according to DWP there were 23 similar requests at a time when there was much media and blog interest during to the recent publication of the ad hoc statistical report for an earlier year) have the approx. 20,000 to 30,000+ people who view and contribute to his blog, not made a FOI request?

        Interestingly, Mr Miller received this response yesterday…

        Disability researcher Samuel Miller received an email from a senior case officer at the Information Commissioner’s Office today (Monday), referring to his long-standing request for information on Employment and Support Allowance/Incapacity Benefit claimant mortality – the number of people who died in 2012 while claiming these benefits.
        It stated: “I have reviewed all the information available to me and note that the Commissioner has dealt with a similar complaint.
        That case has now been appealed to the Information Tribunal by the complainant.
        “Under the circumstances I would strongly recommend that we do not proceed any further with your case until the Tribunal has reached a decision.
        “I understand that this is a highly sensitive and important issue to you, but there is little to be gained by continuing the case as it stands. This is because DWP has not specifically applied an exemption when refusing your request, other than stating it does not intend to publish a further report and is monitoring requests etc. Therefore, I would have to direct DWP to issue a new refusal notice citing an appropriate exemption, and the process would in effect begin again. An internal review would be required before bringing your complaint to the Commissioner. I note that your original request pre-dates that in [my case] so it is unlikely that DWP could apply the same exemption to your request in hindsight.
        “I appreciate that this seems like unnecessary ‘red tape’ however, we are bound by the legislation we oversee. The most that could be achieved at this stage would be to potentially find DWP in breach of section 1 and section 10 of the FOIA.”

        All is not as it seems and I for one am glad that Mr Sivier has appealed the DWP/ICO decision to the GRC Information tribunal.

  4. I have had to prevent a comment from appearing here because it was a series of libellous and unfounded allegations.

    Just for clarity, here is my moderation policy: if you accuse other people of criminal acts without evidence, I’ll delete the comments. Any comments about my personal shortcomings are fine.

  5. When it’s published, have a look at ICO decision notice FS50489913 para. 26. This, along with the Commissioner’s specific adverse comments at a recent parliamentary hearing, indicates, at least to me, that following two separate (and failed) periods of ICO monitoring, and a subsequent requirement for the CEO to sign a specially drafted ICO undertaking, followed by making a public statement of intent, Wirral Council may be approaching “last chance saloon” with the regulator.

    I would expect any commenter worth his salt, to have researched this council, its history, its admissions to repeated abuse and bullying, to think hard and to report accordingly. Thus far, I still have serious doubts that you are in fact capable of this kind of reasoned thought and analysis.

    I KNOW how bad the place is, and how any form of accountability for its behaviour has long been actively circumvented. I also know I don’t need to do it, and there’s no real point, but it can be very tiresome trying to convince others of these facts, when they’ve already made their minds up… on the flimsiest of grounds.

    You put me in mind of a man who goes out on a limb, then starts sawing through the section between himself and the tree.

  6. You’ll see that the person you defend in your article above, along with Wirral’s media “guru” take a keen interest, some would say “a hands on approach” in FoI, which takes the form of watching the responses that go out into the public domain:

    http://wirralinittogether.wordpress.com/2013/03/18/foi-request-wirral-council-claim-that-my-david-garry-departure-request-is-vexatious/

    The key word to search for is “screening”

  7. I didn’t defend anyone; I said I believed that a senior officer would not know – or be that interested in – the identity of an FOI requester. I didn’t even say whether it was a good or bad thing. I didn’t exhaustively research the history of Wirral and FOI and everything else because I wasn’t writing about Wirral. I know you describe your blog as ‘essential reading’ but as I was making a brief reference to one of your blog posts when I was writing about – wait for it – something else other than Wirral, hours of research would have been disproportionate. I’ve met a lot of local authority managers and I know what they’re like. I base my judgement on that experience. Maybe they should care more about what bloggers and FOI requesters say – it’s obvious that you think they do – but I disagree.

  8. Wirral Council are now seeking to gag elected members:

    An insight into the heart of a broken organisation – #Wirralfail Council: http://johnbrace.files.wordpress.com/2014/01/png-letterre-secret-tape-report-08-01-140001.pdf … Thank you to @Level80

    • This comment has absolutely nothing to do with the subject matter of the blog, so I’m not actually sure what you think it adds. The subject matter is vexatious requests, not ‘Wirral Council’. As I think I said to you on Twitter, there is more to FOI than what’s happening in Wirral.

  9. It adds a great deal. Wirral Council (Surjit Tour, Head of Legal, who you’ve been defending) has been using vexatious rebuttals against requesters, with no justification whatsoever, rather than comply with the Act and release or use an exemption – as confirmed by the ICO, which has agreed with my commonsense position on this and overturned them.

    Wirral Council (Surjit Tour, Head of Legal, who you’ve been defending) not content to bully and gag employees, is now trying to gag elected members. The connections are there if you take the time to look.

    If trainers like yourself are to warrant receiving in the region of £1,800 per day there or thereabouts, training Wirral Council officers, and helping the abusers to better rebut awkward or inconvenient requests from the local public, you must be able to recognise and make these connections.

    • I haven’t defended anyone. I have disagreed with you. The fact that you are unwilling to accept that there is a difference between these two things doesn’t alter the truth. I think that not agreeing with Paul Cardin is still legal, so I’m going to exercise my free will and not accept that you are infallibly correct at all times.

      For the record, if anyone wants to pay me £1800 a day, they’re welcome to get in touch, but I have never been paid that much. I also have not done any work for Wirral Council, but as with your position on my non-existent “defence” of Mr Tour, you’ve presumably already decided what work I have done, at what price and who for, so it probably doesn’t matter what I say.

      All we’re proving here is that you think everything in FOI revolves around Wirral Council, and I should avoid ever mentioning Wirral Council again, lest I be hauled over the coals for heresy.

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