17 May - Information Commissioner moves the goal posts
I have spent rather too long wading through the Information
Commissioner’s 31 A4 page response to Dimitri Shvorob’s complaint about
being
labelled vexatious by Bexley Council and was a little surprised to find BiB
named within in it. I was immediately ready to be critical of Bexley Council for
informing the ICO of my reporting role in this affair when a more careful
reading of it revealed that it was Mr. S. himself who had made a reference to
Bonkers. He felt that the reporting of his exploits here might be a reason for
him being treated harshly by Bexley Council.
BiB has not always fully supported Dimitri because he does things that I believe
dilute his more reasonable enquiries. Where I would be content to see confirmation that Bexley Council is less
than honest and quietly regard that as a success, he, in his own words, is “not a chap to suffer in silence”.
In the past I have attempted to be fair to both sides, Dimitri, because he can be a good source of
news, and Councillors who do not deserve to be called “scumbags”. (When they are not!)
Some readers may have noticed
the use of the word funambulism (tight-rope walking) to explain my dilemma.
While happy to record that Bexley Council sometimes acts like a bunch of
crooks - because it undoubtedly has in the past - evidence of any recent repetition has to be solidly based. Refused FOIs are a reason for suspicion but
are not proof. I do not approve of the Leader devoting
a Full Council report to exaggerating her case against Dimitri to try to justify a
refusal to answer his legitimate question while acknowledging that some are distinctly trivial and may well be annoying.
As correspondence with several Conservative Councillors would reveal;
I have questioned what Dimitri actually does with the information he collects. There have been
occasions in the fairly recent past when I have asked him for a copy of an FOI
response and found that he doesn’t keep them - although he may do now
- and he has himself had to ask Bexley Council to remind him of what questions he has asked.
His excuse would be that they had taken six months to answer and Gmail only keeps mail for 90 days.
This is not good and
makes it hard to give unreserved support and I have told him that he tends to take things too far.
The City Events/Lucy
Beckwith business comes immediately to mind. I have felt that some follow-up
questions have been knee-jerk reactions, the sort of thing that one might briefly consider
as a mischievous wind-up but doesn’t actually do.
So what did the Information Commissioner make of it all?
He considered ten complaints and if I was being mischievous I would say that he
found against Bexley Council in nine of them. But that would be misleading, the
verdict was that Bexley Council was wrong to rely on the
vexatious provisions (Section 14.1) of the Freedom of Information Act; vexatiousness
being applicable to repeated questions rather than individuals.
The ICO believed that the Council should have relied on Section 12.4b of the
Environmental Information Regulations which allows for rejection on the grounds
of harassment. I can see some logic in using the Environmental laws in relation to a ULEZ
question but to apply it to the provision of Zebra crossings as the ICO has done
looks to be a stunt to circumvent the limitations of the FOIA vexatious
provisions. The ICO attempted to justify their manipulation of the law
but could come up with only one such example…
“Information about improvements to existing pedestrian crossings and
proposed pedestrian crossing locations will affect the state of the elements as
they will require changes to pavement layout and are likely to affect traffic
flow, thus having an effect on vehicle emissions. Consequently, the information
sought by these requests falls within the definition of environmental information.”
That must surely be a load of convoluted old nonsense which perfectly
illustrates how officialdom is always able to twist the law in their favour.
Going down the EIR route with its harassment provisions rather than
the FOIA and vexatiousness (which the ICO agrees cannot apply to Dimitri’s complaint) requires the public interest
to be considered so the ICO had to return to Bexley Council to get them to
retrospectively consider that issue.
The likelihood is that a devious ICO is well aware of this Get Out Of Jail Free Card
and is happy to hand it to Councils on a plate. It makes Dimitri a relatively easy target.
Apart from his more recent questions relating to the pedestrian crossing he had
hoped to see installed, Dimitri took a scatter-gun approach to FOIs with
questions to 20 different departments averaging six questions a month. (None of which is illegal.)
Bexley Council took the view that the questions were of no public interest and served no purpose beyond Dimitri’s
personal curiosity or even a desire to bog them down in bureaucracy. They
claimed that the occasionally “combative” approach and the number of questions amounted to harassment.
Having been recommended to use the Environmental Information Regulations instead
of the FOIA Bexley Council were able to enforce their ‘FOI’ ban and Dimitri’s
behaviour has left him a sitting duck under the EIRegs.
Bexley Council has had to back down on its total FOI ban - which explains them
answering one last week - and have assured the ICO that
they will answer any future ones which they deem to have an element of public interest.
The Commissioner has specifically rejected Dimitri’s assertion that his FOIs are
unwelcome because a truthful response would damage the Council’s
political leadership and I think they are right to do so. I have never
considered that to be the case; more often it is the refusal to respond which is damaging and
not any suspicion of what the answer may have revealed.
So how can all that be summarised? It appears that the BBC website on vexatiousness
will not have to be rewritten but an unscrupulous ICO is more than willing to
get around the law by defining a Zebra crossing as an environmental issue.
Bexley Council comes out of it reasonably well. The persistent ULEZ questions
were undeniably ‘environmental’ so it was entitled to use the EIR (but lacked
the legal expertise to know about it) and having
been given the nod by a devious ICO it can hardly be blamed for switching the
attack from Vexatiousness to Harassment.
The costs incurred by both the ICO and the Council must have been horrendous and
one has to ask; For What? I cannot think of a single item to introduce here as an
example of how we are all better off for knowing the answer to one of Dimitri’s questions.
And as if to prove that Dimitri is in combative mood, I have already seen his draft Appeal.
I think I now have a big splinter in my bum. Not being entirely for or against
Bexley Council. Against some of Dimitri’s FOIs but fully behind his campaign for
a clear petition statement from Bexley Council and fully confirmed in my opinion of the
Information Commissioner’s Office. Their chosen deviancy was not predicted, only
that the long wait for an answer indicated that they were up to some form chicanery.
Is any Quango worth the expense? Do we have a partial explanation for the record 70
year high levels of taxation?