Upper Tribunal (Administrative Appeals Chamber) 5th Floor Rolls Building
7 Rolls Buildings, Fetter Lane
HM Courts & London EC4A INL
Tribunals Service Tel: 020 7071 5662
Our Ref: GIA/793/2019
4 October 2019
Dear Mr Swift,
Re: Highways England Company Ltd v The Information Commissioner & Swift
I enclose a copy of the decision of the Upper Tribunal judge refusing the applicant permission to appeal. A copy has been sent to all parties.
The applicant has a right to apply within 14 days (or longer if time is extended) for the refusal to be reconsidered at an oral hearing.
If the applicant does apply for reconsideration you will be notified and told the listing arrangements.
DECISION: PERMISSION TO APPEAL AGAINST THE FIRST-TIER TRIBUNAL’S DECISION IS REFUSED
Reasons for decision
1. The Upper Tribunal has a discretion whether to grant permission to appeal against a decision of the First-tier Tribunal (section 11 of the Tribunals, Courts and Enforcement Act 2007). I will grant permission to appeal if an Appellant has a realistic prospect of establishing that the First-tier Tribunal’s decision involved a material error on a point of law. A ground of appeal that reaches that threshold is described as arguable. The Upper Tribunal has power to suspend the effect of the First tier Tribunal’s decision pending determination of appeal proceeding before the Upper Tribunal. Highways England did not apply for an order suspending the effect of the First-tier Tribunal’s decision.
2. In determining this application, I treat the Appellant’s grounds of appeal to be those set out in the body of the application for permission to appeal rather than as described in the headings to each ground. The headings and the arguments made do not always coincide.
3. I do not normally need to make the following point, especially where an Appellant is a public authority, but, in this case, I must emphasise the limited jurisdiction of the Upper Tribunal, which is confined to errors on points of law. Had Parliament intended to confer on the Upper Tribunal a jurisdiction that extended to errors on points of fact it would have made the necessary provision in the Tribunals, Courts and Enforcement Act 2007. It did not do so. Many, in fact very many, of the arguments advanced by Highways England are challenges to the First-tier Tribunal’ s findings of fact. Moreover, their arguments on the facts extend to free-standing factual assertions some of which were not even assertions of fact that the First-tier Tribunal was invited to make.
Determination of application
Ground (1 )
4. I do not grant permission on ground (1). In my judgment, none of the various arguments under the ground (1) heading have a realistic prospect of success:
(a) paragraph 9 of the grounds of appeal argues that the First-tier Tribunal was not entitled to find, for the purposes of section 58(1)(a) FOIA, that the Commissioner’s decision notice was not “in accordance with the law”, nor was the tribunal entitled to find that the Commissioner, for the purposes of section 58(1)(b), should have exercised a discretion differently. In support, the application submits “there was no error of law here” and that the Commissioner correctly applied the approach to questions of vexatiousness identified by the Upper Tribunal in Information Commissioner v Devon CC & Dransfield (no citation no. given in the application – the citation no. is  UKUT 440/442 (AAC)). Paragraph 12 argues that the tribunal had no basis in law to overturn the Commissioner’s decision notice. The application does not identify any part of the First-tier Tribunal’s statement of reasons which, in Highways England’s submission, discloses a flawed finding that the decision notice was not in accordance with the law. Nor does the application identify any flawed tribunal determination that the Commissioner should have exercised a discretion differently. The Appellant cannot expect the Upper Tribunal simply to take its word for it. In the absence of any particularised submission in support, these paragraph 9 arguments do not have a realistic prospect of success;
(b) paragraph 11 argues that the tribunal chose to treat the vexatiousness issue as a matter of discretion, which it is not. The Appellant is correct that determining whether a request for information is vexatious does not involve the exercise of any discretion. However, again, the application does not support the argument made by reference to the tribunal’s reasoning. The point is simply asserted. As advanced, this argument does not have a realistic prospect of success;
(c) paragraph 11 further argues that the tribunal “chose to overturn findings of fact on the papers” in the absence of any justification for doing so. No ‘overturned’ finding of fact is identified nor, it follows, does the application explain why any particular finding of fact was overturned without justification. This argument does not have a realistic prospect of success.
5. I do not grant permission on ground (2). In my judgment, none of the various arguments under the ground (2) heading have a realistic prospect of success:
(a) ground 2 begins by discussing the relationship between motive and vexatiousness under FOIA. Paragraph 15 then argues that “on the facts of this case, the indicators of vexatiousness were present and there is no basis to conclude there was a reasonable motivation here”. There are a number of problems with this argument. Firstly, it makes assertions about the facts as if determination of the relevant facts fell within the exclusive province of Highways England. Secondly, it asserts that which Highways England sought to prove before the First-tier Tribunal, namely ‘the indicators of vexatiousness were present”. Thirdly, the assertion that there was ‘no basis’ to conclude a reasonable motivation is not particularised. The tribunal was bound to find that Mr Swift’s request lacked a reasonable motivation, argue Highways England, but the application does not identify which features of the case compelled the conclusion that a reasonable motivation was absent. Moreover, the Commissioner herself found that “the requests seek to shed light on an area which is of interest to the motoring public, and that the request under consideration in this notice can be said to have some serious purpose and value” (paragraph 38 of the Commissioner’s decision notice). In my view, it is clear that, if Highways England wished seriously to argue that the tribunal was bound to find that Mr Swift’s request for information lacked reasonable motivation, it needed to explain why that argument was advanced despite the Commissioner’s finding. No such explanation is contained within Highways England’ s application for permission to appeal. The paragraph15 argument referred to above does not have a realistic prospect of success;
(b) paragraph 15 also argues that “even if the Tribunal accepted as it did that there was a reasonable motive, that should make no difference to the exercise of discretion because other indicators of vexatiousness were present”. Having argued in ground (1) that discretion has no part to play in determining vexatiousness, Highways England now argue that it does involve a discretion, the exercise of which by the tribunal was flawed. Determining whether a request is vexatious does not involve the exercise of discretion. This argument is therefore bound to fail;
(c) paragraph 17 argues that the tribunal adopted the ‘bright-line’ approach expressly disapproved by the Court of Appeal in Dransfield  1 WLR 531. Again, the application fails to identify any feature of the tribunal’s statement of reasons in support of its argument. As advanced, this argument does not have a realistic prospect of success;
(d) paragraph 17 argues that the tribunal “completely disregarded” the evidence of Sian Jones including certain identified features namely (i) the particular strain Highways England was under as a result of Mr Swift ‘stacking’ requests for information; (ii) that Mr Swift’s requests for information were characterised by their volume, frequency, repetitive nature, length and were designed to be difficult to address with precision; (iii) Ms Jones’ impression’ that Mr Swift is never satisfied, quickly points out short-comings and inconsistencies and attempts to tie Highways England up in knots. Unhelpfully, this argument is not cross-referenced to any of the paragraphs within Ms Jones’ lengthy witness statement. I need to pause for a moment to note that Highways England argue that the tribunal ‘completely disregarded’ Ms Jones’ evidence. They do not, for example, argue that the tribunal gave inadequate reasons for rejecting Ms Jones’ evidence nor that irrational weight was given to any opposing evidence. I shall deal with the argument actually advanced, which I conclude does not have a realistic prospect of success. Ms Jones’ evidence was not ‘completely disregarded’. Her witness statement was expressly referred to in the following paragraphs of the tribunal’s statement of reasons: Il(iii), 11(iv), 17. Other parts of the statement of reasons must also have been informed by Ms Jones’ evidence, for example the paragraphs dealing with the question of overlapping requests;
(e) paragraph 12 argues that the Commissioner was entitled to reach the conclusions that she did. This is an argument to be made to the First-tier Tribunal. It is not an argument that the tribunal’s decision involved an error on a point of law. As advanced, this ground does not particularise the errors on points of law said to have been made by the First-tier Tribunal. It also seem to me to overlook the First-tier Tribunal’s power to review any finding of fact on which the Information Commissioner’s decision notice was based (section 58(2) of the Freedom of Information Act 2000 (FOIA)). This argument discloses no possible error on a point of law.
6. I do not grant permission on ground (3). In my judgment, none of the various arguments under the ground (3) heading have a realistic prospect of success:
(a) the grounds of appeal argues that the First-tier Tribunal failed to take into account that Mr Swift had been making requests for information relating to the costs of highway repairs since 2013. It seems that the factual assertion integral to this ground is based on Ms Jones’ statement that “the Requester has made 57 requests for information or internal review in that period”. I assume that assertion is derived from paragraph 13 of Ms Jones’ witness statement (I say ‘I assume’ because Highways England’s application, to the extent that it relates to Ms Jones’ evidence, contains no cross-referencing). Paragraph 5 of the tribunal’s statement of reasons refers to the Commissioner’s evidence that, from January 2016, Mr Swift submitted 24 requests for information or internal review. In paragraph I l(i), the tribunal’s statement of reasons refers to the 57 requests mentioned in Ms Jones’ witness statement. Then, in paragraph 17, the tribunal accepts that Mr Swift’s requests placed a burden on Highways England “in terms of the number of requests”. Given these parts of the tribunal’s statement of reasons, it is in my view clear that the argument that the tribunal failed to take into account evidence about the numbers of requests made by Mr Swift since 2013 is unsustainable;
(b) ground (3) goes on to make a whole host of factual assertions concerning fraud (or, more precisely, the absence of fraud) followed by the argument that the tribunal’s findings in paragraphs 23 and 27 of its statement of reasons accorded “credence to wholly unsubstantiated allegations of fraud contrary to well established principles of law”. The Oxford English Dictionary defines ‘credence’ as ‘belief in or acceptance of something as true’ or ‘the likelihood of something being true’. It seems to me, therefore, that Highways England argue that the tribunal either accepted Mr Swift’s allegations of fraud or indicated that the allegations were likely to be true. But the tribunal did no such thing. In paragraph 23 of its statement of reasons, the tribunal stated ‘if he was correct in his concerns the Requestor was attempting to identify fraud’. In paragraph 27 the tribunal stated ‘the exposure of potential misfeasance in public office is a matter of objective public interest’ and also referred to ‘alleged systematic overcharging and fraud by a contractor’. The tribunal made no finding in neither paragraph 23 nor 27 about the veracity of Mr Swift’s allegations. And the parts of paragraphs 23 and 27 cited in Highways England’s application cannot reasonably be read as expressing any view as to the likelihood of Mr Swift’s allegations being true. This argument is built on a flawed premise and does not have a realistic prospect of success;
(c) Highways England also argue, presumably as an alternative to the above argument, that the tribunal “failed to give any weight to the fact that unsubstantiated allegations of fraud may themselves be an indicator of vexatiousness”. Highways England’s written response to Mr Swift’s notice of appeal to the First-tier Tribunal sets out, at paragraph 11, a series of ‘hallmarks of vexatiousness’ (p. 119, volume 3 of the bundle). They include the argument that Mr Swift unjustifiably accused Highways England of having provided false information to the tribunal but not the argument that Mr Swift made ‘unsubstantiated allegations of fraud’ (I add that the grounds of appeal do not identify any such argument). The First-tier Tribunal did not err in law by omitting to deal with an argument that was not advanced by Highways
(d) Highways England argue that the tribunal made an incorrect finding of fact that Mr Swift had a tendency to make threats of police action. This was incorrect and unsupported by the evidence. The correct position was that Highways England complained that Mr Swift’s conduct warranted a report to the police (for harassment). Quite apart from the fact that the point of this argument escapes me (the application sheds no light), the tribunal was clearly entitled to make the finding that it did. There was evidence to support the finding that Mr Swift had made threats of ‘police action’. See, for example, p.81 of Mr Swift’s written reply to the Information Commissioner’ s response to his appeal to the First-tier Tribunal (volume 3 of the tribunal bundle). I came across other references made by Mr Swift to the police needing to be involved when reading the three-volume First-tier Tribunal bundle but do not intend to spend further time re-locating and referencing them. This argument does not have a realistic prospect of success.
7. Ground 4 argues, in effect, that the only possible conclusion open to the First-tier Tribunal was that Mr Swift’s request was vexatious. Highways England argue a number of features of this case meant the tribunal’s only option was to decide that Mr Swift’s request was vexatious:
(a) frequency of requests. In fact, Highways England combine their description of this feature with an argument that the tribunal overlooked evidence about the extent of Mr Swift’s requests. This is a truly weak argument. The difference between the number of requests referred to by the Commissioner and those contended for by Highways England is clearly explained by the two bodies starting counting at different dates: the Commissioner in 2016, Highways England in 2013. As noted above, the tribunal was aware that one part of the evidence quantified requests since 2013 and the other since 2016. Moreover, the application asserts that 62 requests had been made since 2013 followed by ‘see Witness Statement of Sian Jones’. However, Ms Jones’ statement refers to 57 requests. Highways England have either mistakenly transcribed Ms Jones’ evidence or are seeking, without any justification let alone application, to rely on evidence that was not before the tribunal;
(b) extended campaign, relying in part on “evidence that Mr Swift is instigating or assisting other requesters: see Jones  onwards”. What Highways England omit to mention is that the Commissioner’s only clear finding on this point was that Mr Swift had encouraged other requesters to persist with their enquiries to Highways England (paragraph 30 of the decision notice);
(c) certain information already provided;
(d) Ms Jones’ evidence “suggests a picture of obsessiveness” and also suggests harassment;
(e) scattergun approach;
(f) ‘tone’ which “speaks for itself”;
(g) staff distress;
(i) number, breadth, pattern and duration of requests;
(j) associate requesters — there was ‘strong evidence’ that Mr Swift “was targeting and harassing Highways England via vexatious abuse of the FOI regime by either encouraging, acting in concert with or provoking others to make similar requests”. As previously, the grounds of appeal (I have to say sloppily) inserts a separate argument namely that the tribunal “completely disregarded” evidence that one ‘associate requester’, Mr Wayne Vardon, “has been identified as an employee at Mr Swift’s company”
8. In my view, this is a disguised attempt to re-run Highways England’ s response to Mr Swift’s appeal to the First-tier Tribunal. And it is not a very well disguised attempt at that. The arguments relied on in the present application are almost an exact match for those put to the First-tier Tribunal in paragraph 11 of Highways’ England’s response to Mr Swift’s appeal. One reason why they are not a complete match is because the current grounds include arguments that were not advanced before the First-tier Tribunal such as the arguments under the heading ‘number, breadth, pattern and duration of requests’ and those regarding associate requesters. On the latter point, it is now argued there is ‘strong evidence’ of targeting etc whereas ‘strong’ did not feature in the arguments put to the First-tier Tribunal. Highways England’ s case is not helped by them seeking to rely, in support of their argument that the only reasonable conclusion open to the tribunal was that Mr Swift’s request was ‘vexatious’, on points that were not relied on before the First-tier Tribunal.
9. There will of course be cases in which a tribunal has no option but to decide that a request for information was vexatious. I am satisfied that this was not such a case. As the Commissioner’s decision notice shows, the arguments were not all one way. I am also satisfied that Highways England’s evidential case cannot be described as so compelling that the tribunal was bound to make a finding of vexatiousness. For example, the harassment claim was based in part on very many emails having been sent to a particular member of staff (not the maker of the witness statement) yet the emails were not scheduled to the only witness statement supplied by Highways England. In the circumstances of this case, it would be an improper usurpation of the First-tier Tribunal’s role were the Upper Tribunal to decide that the tribunal was bound to find that Mr Swift’ s request was vexatious.
10. In relation to Mr Vardon, Highways England’s written submission to the First-tier Tribunal was that “his association in this sense [as an employee] is not an unreasonable inference”. I do not see how the tribunal’s statement of reasons may reasonably be read as finding that Mr Vardon was not associated with Mr Swift. The tribunal noted that one of the individuals identified by Highways
England was said to be Mr Swift’s employee (or the employee of the company he runs) and there is nothing in the statement of reasons to suggest that the tribunal rejected this evidence. In fact, I do not believe it was disputed by Mr Swift.
11. Finally, this ground argues that, if the tribunal considered that there was a material factual dispute, it should have directed an oral hearing rather than deciding Mr Swift’s appeal on the papers. Highways England were well aware that neither Mr Swift nor the Information Commissioner had requested a hearing. Moreover, Highways England expressly declined a hearing in response to tribunal case management directions: see the directions of 8 June 2018 at p. 131 of volume 3 of the bundle. I am surely not being asked to accept that Highways England approached the First-tier Tribunal proceedings on the assumption that Ms S Jones’ written witness statement was bound to be accepted by the tribunal. They must have known it might not be accepted. There is nothing in the First-tier Tribunal bundle to suggest that any steps were taken to secure the other parties’ agreement to the statement. Highways England ran a calculated litigation risk – they were represented by counsel – and it is now too late for them to try and un-do the consequences.
12. This ground (for some reason) repeats ground 4 but also submits that, had the First-tier Tribunal conectly applied the Upper Tribunal’s approach in Dransfield, it “would have concluded the request was vexatious”. The ground relies on the following arguments:
(a) in considering staff harassment, the tribunal applied a ‘wholly remote objective standard’ that was ‘entirely divorced’ from the evidence as was shown by the tribunal’s reliance on Highways England’s organisational size. Ms Jones gave evidence about the number of staff in Highways England’s FOI unit namely that “FOI requests are dealt with by an FOI officer and two further administrative personnel”;
(b) the tribunal failed to take into account or give proper weight to the history and context or the number, breadth, pattern of previous requests. While the ‘history’ was mentioned in paragraph 20 of the tribunal’s statement of reasons, it was not the subject of any analysis. In focussing on the issue of intemperate or offensive language, the tribunal failed to give proper consideration to the disruption caused to Highways England.
13. Regarding (a), I need to begin by referring to Ms Jones’ statement’s description of Highways
England’s arrangements for discharging its FolA responsibilities. Beginning at paragraph 7 of the statement, Ms Jones ‘ description encompassed the functions of Associate Information Rights Officers and ‘dedicated individuals’ within separate Highways England business units, the role of the FOI team which “would not itself have sufficient resources to answer all of the FOI requests that we receive” but instead provided “guidance, advice and template responses”, and also Ms Jones’ role as head of the Fol team. Argument (a) asserts “Sian Jones’ evidence is that FOI requests are dealt with by an FOI Officer and two further administrative personnel”. It is true that paragraph 9 of Ms Jones’ witness statement said that requests for information were dealt with by the FOI officer and the FOI team. However, it went on to describe internal arrangements that did not provide for all requests to be dealt with by the FOI team. What other meaning can be given to the statement that the FOI team “would not itself have sufficient resources to answer all of the FOI requests”?
14. Highways England argue that the tribunal’s approach was wholly divorced from the evidence. If it is in fact the case that all Fol requests are dealt with by a small team of three staff members (i.e. Ms Jones’ witness statement was inaccurate), then Highways England only have themselves to blame. Any objective reader of paragraphs 7 to 13 of Ms Jones’ witness statement would not conclude that, within Highways England, only three staff deal with all Fol requests. But that is what Highways England now appear to assert. If not, why does this ground say nothing at all about the Associate Information Rights Officers and ‘dedicated individuals’ within separate business units described in Ms Jones’ statement? On the above basis, this ground does not have a realistic prospect of success because it is built on different evidence to that presented to the First-tier Tribunal and no application is made for admission of fresh evidence.
15. Regarding (b), the application argues that ‘the history’ was either not taken into account or not given proper weight. The application does not explain why failing to give ‘proper weight’ to the ‘history’ would amount to an error on a point of law. How can I decide whether ‘proper weight’ was given without deciding for myself what weight would be ‘proper’? And I cannot do that in a jurisdiction limited to errors on points of law. I shall therefore address the other limb of the argument namely whether the history was taken into account. The application argues the ‘history’ was mentioned in paragraph 20 of the statement of reasons but was not subject to any analysis when the tribunal came to determine vexatiousness. By the ‘history’, this ground must be taken to mean the matters mentioned in paragraph 20. If something else was intended, the application should have said so. Most of paragraph 20 of the statement of reasons involves the tribunal identifying general principles. It is only in the last sentence that the principles are connected to the case before the tribunal. This last sentence mentions the number of requests and telephone calls made. In my judgment, it cannot properly be argued that these matters were not taken into account (which is the argument advanced by Highways England). That is clear from reading paragraphs 29 and 30 of the tribunal’s statement of reasons.
16. Argument (b) also contends that, in focussing on intemperate or offensive language, the tribunal failed to consider the disruption caused. The tribunal can hardly be criticised for addressing whether Mr Swift’s requests were intemperate or offensive. Ms Jones’ witness statement described Mr Swift’ s requests as coming close to “outright harassment” (paragraph 65) and being, at times, aggressive and insulting (paragraph 66).
17. Argument (b), in referring to ‘disruption’, adopts the language used in CP v Information Commissioner  UKUT 427 (AAC). Highways England’s written submissions to the First-tier Tribunal used different language, that of ‘burden’ (see p. 121 of volume 3) and, in turn, the tribunal expressed its conclusions in terms of burden. It seems to me that Highways England criticise the tribunal for dealing with the case that j! put to the tribunal. The tribunal was not required to re-frame Highways England’s case — to focus on ‘disruption’ rather than ‘burden’ — and its failure to do so was not an error in law. This argument does not have a realistic prospect of success.
18. The First-tier Tribunal did not, as Highways England effectively submit, find that staff in a large organisation were incapable of suffering statutory harassment. If the finding in the first sentence of paragraph 19 of the statement of reasons is read sensibly, it will be appreciated that the tribunal made a finding specific to this case. It was not seeking to expound a general proposition of law. This undermines the argument in paragraph 31 of the grounds of appeal, which is based on the assertion that the tribunal found that staff in a large organisation could not suffer statutory harassment. Accordingly, the argument does not have a realistic prospect of success.
19. Paragraph 32 of the grounds of appeal challenge the tribunal’s findings of fact and, in so doing, selectively quotes from those findings. On my reading, the tribunal found in paragraph 19 of its statement of reasons that, if there had been harassment or distress, it was “principally caused by inadequate or inaccurate responses by the personnel within public authority [sic]”. This paragraph 19 finding is not challenged. In the absence of a challenge to this finding, the arguments in paragraph 32 do not have a realistic prospect of success. In relation to the argument that the tribunal should have directed an oral hearing, see paragraph 11 above.
20. This ground concerns the following findings in paragraph 17 of the First-tier Tribunal’s statement of reasons:
. . Together with the other evidence before us [that is in addition to Ms Jones ‘ evidence about Highways England’s arrangements for discharging its FOIA responsibilities], we do not accept that they were faced with an unduly burdensome task in dealing with the Appellant’s requests. This is particularly so in the context where we find they have not addressed the issues apart from 1 audit they provided to the Appellant. We find HE has failed to properly identify the issues raised and dealt with them adequately or at all.”
21. Highways England criticise those findings for a number of reasons. Highways England’s reasoning shows that it interprets the finding of inadequacy as relating to their management of Mr Swift’s FOIA requests (the grounds of appeal draw attention to a spreadsheet with details of requests for information and how they were responded to). In my judgment, Highways England’s arguments are based on a misunderstanding of the First-tier Tribunal’s findings. The tribunal found that the issues’ were not addressed apart from by way of a single audit. The audit, referenced in a number of places in the tribunal bundle, concerned contractors’ charges for repairing damaged roads, and ancillary matters, and was carried out by the accountants KPMG. The audit was not about FOIA. Its presence within the tribunal’s paragraph 17 findings shows, in my judgment, that the ‘issues’, found to have been inadequately dealt with, were Mr Swift’s underlying concerns about contractor charges for damage to roads and ancillary matters. Since this ground is based on a misunderstanding of the tribunal’s findings, it does not have a realistic prospect of success.
22. There is a thread of indignation running through the grounds advanced by Highways England on this application. Clearly, Highways England are aggrieved by the First-tier Tribunal’s decision. But I cannot grant permission to appeal simply because a party strongly disagrees with a tribunal’s decision. In my judgment, Highways England’s grounds of appeal do not have a realistic prospect of success. I refuse permission to appeal to the Upper Tribunal against the First-tier Tribunal’s decision.
23. I cannot leave this application without observing that, if the present matter is as important to Highways England as their application for permission to appeal suggests, I am perplexed by the way in which they engaged with the Information Commissioner’s investigation into Mr Swift’ s complaint. Since Highways England did not respond to the Commissioner’s requests for observations, she was forced to take the (in my experience) unusual step of serving a statutory information notice on Highways England (p. 190, vol. 3). I wish to express my concern that the Information Commissioner was forced to expend resources, which I suspect are less than abundant, on requiring a public authority to do that which it should do as a matter of course, i.e. comply with the law. I also note that, when Highways England responded to the Information Notice, their response took the form of about 1/2 a page of written representations. If, on reflection, Highways England consider that their engagement with the Commissioner did not serve their interests, I would be inclined to agree with them.
(Signed on the original)
Judge of the Upper Tribunal
13 September 2019