Appeal of Information Commissioner's decision

IN THE MATTER OF AN APPEAL TO THE FIRST-TIER TRIBUNAL (INFORMATION RIGHTS) UNDER SECTION 57 OF THE FREEDOM OF INFORMATION ACT 2000

APPEAL: EA/2017/

BETWEEN:

ME (Mr Y)

Appellant

And

THE INFORMATION COMMISSIONER

Respondent

And

PARLIAMENTARY AND HEALTH SERVICE OMBUDSMAN

Second Respondent

…………………………………………………………………………..

WRITTEN SUBMISSIONS

THE APPELLANT

……………………………………………………………………………..

Bundle page

The PHSO state in their Refusal Notice dated 28 May 2016 that dealing with my two requests would take over 23 hours. In the First Witness Statement of XXX, the time required to respond to my First Request is re-estimated at over 34 hours.

160

Mr XXX’s statement (point 10) includes the following:

“Whilst some of the fifteen parts of the request would only take a few minutes each to answer, the response to other parts (specifically those relating to the number of individuals involved in complaints, assessments and investigations) would require the manipulation of data that would take a long time”. (Emphasis added)

158

If Mr XXX’s statement is correct, how could the PHSO have provided the information contained in FDN-240384 to J Roberts? J Roberts received information relating to the number of individuals who had multiple cases not just for one year, but for two. In addition, he or she received information on assessments and investigations for the year 2014/15: the information that I requested for 2015/16, and which Mr XXX asserts would take a long time to answer. It is not apparent to me why Mr XXX has attributed so much time to the process given that a similar exercise had previously been undertaken.

The internal review response states that similar requests to mine, “had also been refused”. Although this statement is true, it is also true that a request similar to my own had been complied with for the year 2014/15.

106

It is relevant that J Robert’s request FDN-245450 (Duration of Open Complaints) was submitted on 1 December 2015, sixteen days after FDN-240384. Section 12 was not invoked. The requests were not amalgamated for cost purposes. Also, a number of other detailed requests were made by J Roberts at around the same time as these two, and the PHSO managed to deal with all of them within cost limits.

Part of the response to request FDN-228941 submitted on 17 October 2015 is included in the bundle. This request: ‘”Last year over 40,000 people contacted us” claim still on website’ concerned a statement on the PHSO website. Details of an earlier related request can be found in the bundle.

135

Other requests by J Roberts to PHSO that were complied with:

Date made	Title of Request	FDN ref.

13/11/15	Customer satisfaction	240368
16/11/15	Complaints about PHSO – monthly stats for 2014/15	240645
02/12/15	FOI requests received by PHSO outwith WDTK	242023
06/12/15	Response time for FOI review requests	242467
08/12/15	Potentially avoidable death statistics	242469
11/12/15	Southern Health NHS Foundation Trust deaths	242980
13/12/15	Customer satisfaction (related request)	243063
20/12/15	WDTK replies sent to personal email accounts	243660

No cost spanner was put in the works of J Roberts.

I return to the statement of Mr XXX quoted above, specifically:

“Whilst some of the fifteen parts of the request would only take a few minutes each to answer”. (emphasis added)

This contrasts with what the FOI officer told the ICO in her email of 13 December 2016:

“It was not possible to provide more precise information on how best to narrow the requests as the granualar nature of all the data requested meant that there was not an obvious part which could be answered easily.” (emphasis added)

I consider these two statements contradictory. The latter, made by a former Acting Head of Freedom of Information/Data Protection at the PHSO, I consider untrue. Details of her former senior position can be found in her responses to, for example, this FOI request:

[link redacted]

Whilst mindful of Lord Hailsham’s observation that: ‘Two reasonable persons can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable”, I see nothing reasonable in the emphasised part of the FOI officer’s conclusion.

158

Further confusion is added by Mr XXX’s admission (para.8) that:

“I was made aware of Mr Y’s Requests shortly after they were received and recall discussing, first with my team and subsequently with FOI Officer [sic] (Freedom of Information Officer and Data Protection Officer at the PHSO).

What did they conclude – that no part could be answered easily or that some parts could?

If they concluded that some parts could be answered easily (I consider it true that some parts could be answered easily), then I consider that FOI Officer’s statement to the ICO in her email of 13 December 2016 (see para. 7 above) was at the time she made it incorrect to her knowledge.

157

I now turn to the failure of the PHSO to offer advice and assistance. The Refusal Notice doesn’t mention section 16 FOIA at all.

And the the internal review does little better:

“…it might be possible to for her [Ombudsman] to accede to a smaller number of those questions whilst not exceeding the cost limit.”

A far cry from a costs estimate that should be: “sensible, realistic and supported by cogent evidence”: Randall v IC and Medicines and Healthcare Products Regulatory Agency, EA/2007/0004.

The ICO Decision Notice declares that the PHSO complied with section 16 FOIA:

“The Commissioner is satisfied that PHSO complied with section 16 FOIA and offered the complainant adequate advice and assistance with regard to his requests.”

The same opinion was expressed in the Commissioner’s preliminary assessment.

The Commissioner, however, revised her opinion in her Response of 9 March 2017:

“However, having reviewed this matter following receipt of the appeal, the Commissioner considers that this decision is incorrect.”

In the “Written Submissions on behalf of the Second Respondent” (para. 3) it is argued that:

“The ICO is wrong to suggest in her Response (but not the DN) that there was any breach of section 16, and the Appellant, rightly, does not make any such complaint.” (emphasis added)

Had I known then what I know now about the FOIA I almost certainly would have complained.

101

I agree that the Commissioner is correct not to treat the advice and assistance provided to me at the internal review stage as complying with section 16 FOIA. The PHSO failed to provide me with information or guidance on how to make a meaningful refined request. In fact, I wasn’t even told which parts could each be answered in a few minutes.

If the Commissioner’s position on section 16 FOIA as articulated in her Response is correct, then I am concerned that it required me to appeal her Decision Notice for her to change her mind. In Roberts v IC EA/2008/0050 we are reminded that: “A Decision Notice must be based on the facts that existed at the date when the public authority reached its decision.” The PHSO offered very little by way of advice and assistance in its internal review.

158

Had I been provided with proper advice and assistance in my Refusal Notice I believe a lot of time, effort and money would have been spared all round.

Conclusion

For the reasons set out above, and in the Commissioner’s Response in respect of section 16 FOIA dated 9 March 2017, I submit that the appeal should be allowed. The PHSO incorrectly applied sections 12 and 16 FOIA.