HE Seek Permission to Appeal EA/2018/0088

Appeal No: EA/2018/0088

IN THE MATTER OF AN APPEAL TO THE FIRST TIER TRIBUNAL
(INFORMATION RIGHTS) BETWEEN:

PHILIP SWIFT on behalf of
CLAIMS MANAGEMENT & ADJUSTING LIMITED
Appellant
and

(1) INFORMATION COMMISSIONER
(2) HIGHWAYS ENGLAND
Respondents

GROUNDS OF APPEAL ON BEHALF OF THE SECOND RESPONDENT

Introduction

1. The Second Respondent (Highways England) seeks permission to appeal the
decision of the First-tier Tribunal dated 13th December 2018 which was decided on paper without an oral hearing (the “First Tier Decision”). The First-tier Tribunal (the “Tribunal”) overturned the decision of the Information Commissioner who had concluded that Highways England was entitled to rely on s.14 of the Freedom of Information Act 2000 on the basis that the request was vexatious.

Summary of Background Facts

2. Highways England (formerly the Highways Agency) is responsible for operating, maintaining and improving England’s motorway and major “A” road network. Highways England employs a number of civil and infrastructure engineering contractors to repair, maintain and construct that road network. The information requested relates to charges by contractors to third parties for the costs of repairing damage to highways resulting from traffic accidents under Asset Support Contracts.

3. The Requestor has a long history of making many overlapping and repeated requests relating to this topic as set out in the witness statement of Sian Jones (Lead Information Rights Officer Highways England) dated 20th July 2018 and filed in resistance to the Requestor’s appeal to the Tribunal.

4. The requested information was as follows and the request was made on 25th July 2017:

“I ask to be provided from 01/07/2014 in respect of Areas with Appendix A to Annex 23 and damage to Crown Property:
1. The Defined costs, those referred to in Appendix A to Annex 23 of the Contract.
2. The Third party claims overhead.
3. All information that relates to how the above are to be applied to claims.
4. confirmation that the charge to Highways England comprises:
a. the defined cost (at ’12 above)
b. a fee uplift

I do not accept that the above is commercially sensitive.”

On 23rd August 2017, Highways England responded stating it considered the request to be vexatious under s.14 of the Freedom of Information Act 2000.

5. In her decision notice FS50703446, the Commissioner followed the approach of the Upper Tribunal in Information Commissioner v Devon County & Dransfield
(GIA/3037/2011). The Commissioner concluded that Highways England was correct to refuse to respond to the request under s.14 and did not require it to take any steps.

6. The Tribunal considered the matter under four heads (a) burden on the authority and
its staff; (b) the motive of the requester; (c) the value or serious purpose of the request and (d) any harassment or distress of and to staff: First Tier Decision at paragraph [16]. The Tribunal concluded that: (a) although it was accepted there was a burden on the public authority in terms of the number of requests and phone calls, it was not accepted that it was faced with an unduly burdensome task [17]; (b) & (c) the requester’s motive had a serious purpose and a high degree of public interest [18]; and (d) it was not accepted that there could be any harassment or distress of staff in an organisation the size and import of the second respondent [19].

7. The Second Respondent contends that the Information Commissioner’s decision was
correct and the Tribunal erred in reaching the conclusions it did.

Grounds of Appeal

(1) The Tribunal was wrong in principle to overturn the decision of the Information Commissioner because (a) there was no basis within s.58 of the Freedom of Information Act to do so and (b) the Tribunal failed to identify any basis.

8. The appeal process is one of review as provided for in s.58 FOIA. Section 58 FOIA
provides:

58.— Determination of appeals.

(1) If on an appeal under section 57 the Tribunal considers—

(a) that the notice against which the appeal is brought is not in accordance with the law, or

(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,

the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

(2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

9. This appeal does not fall within s.58(1)(a) nor is it expressed to in the reasons of the Tribunal. There was no error of law here. The Information Commissioner identified the correct law (namely the approach as set out in Information Commissioner vs Devon County & Dransfield) and applied it correctly: see Decision Notice at [11] to
[12]. Similarly, this is not a matter of discretion that falls within s.58(1)(b).

10. Section 14(1) of the Freedom of Information Act 2000 does not concern matters of
discretion. It states:

(1) Section 1(1) does not oblige a public authority to comply with a request for information if the request is vexatious.

If a request is vexatious, a public authority is not obliged to comply with the request and there is no power to compel it to do so under the Act. This is not a question of discretion.

11. The Tribunal erred because in circumstances where the case did not fall within s. 58
at all, it chose in effect to treat the question of vexatiousness as a question of discretion which it is not. It is a mixed question of fact and law. In reality, the Tribunal chose to overturn findings of fact on the papers where there was no justification to do so in order to reach a different conclusion on the issue of vexatiousness.

12. The Information Commissioner was entitled to reach the conclusions she did –
which were reached by applying the correct legal test. The Tribunal had no basis in law to overturn that decision within s.58.

(2) The Tribunal erred in treating the question of motive as determinative of a lack of vexatiousness or alternatively placing too much weight on the Requester’s motive.

13. The Information Commissioner applied the correct approach in law as set out in
Dransfield. The Guidance set out by the Upper Tribunal in that case was not challenged before the Court of Appeal: Dransfield v Information Commissioner
[2015] 1 WLR 531 at 6.

14. It is clear that as a matter of law motive is not determinative of vexatiousness in any event. As the Court of Appeal noted in Dransfield at [66], the normal rule in English law is that a bad motive for exercising a right does not invalidate the exercise of the right. However, s.14 (which allows a request to be rejected for vexatiousness) allows departure from this rule. The effect of this is that while motive may be relevant to vexatiousness, it is not determinative. In other words whilst a bad motive may indicate vexatiousness, a good motive does not cure vexatiousness if the request is otherwise vexatious.

15. 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 (see further Ground 3 below). However, 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.

(3) The Tribunal erred in finding that that there was an adequate and proper justification for the request on grounds that the Requestor was attempting to identify fraud because (a) there was absolutely no evidence of fraud at all; (b) it was perverse to place reliance on a mere allegation of fraud in the absence of such evidence; and (c) in view of the seriousness of an allegation of fraud against a public authority, before the Tribunal can or should place reliance on an allegation of fraud speculative assertion is not enough and the evidence should cross a threshold of “balance of probability” or at least “more likely than not”.

16. The Tribunal failed to take into account that the Requester has been making requests
of Highways England in relation to the issue of the costs of repairing highways since 2013. As set out in the evidence of Sian Jones at §15, the Requester has made 57 requests for information or internal review in that period. Woven throughout that history are allegations of wrong doing and fraud by way of overcharging by third party contractors.

17. The underlying matters concern repairs to the highway often following motor
accidents, these are matters that frequently involve insurers. In other words, financial claims involving those with a strong and independent commercial motive to expose any overcharging or fraud. This notwithstanding, there has never been a civil fraud claim, a criminal fraud claim or a referral to the police by any party at any time in respect of these matters. The true situation is that the Requester has engaged unsubstantiated allegations of “systematic fraud on an industrial scale” (Reply submissions at paragraph 31) without any evidence in support of that statement at all. There is nothing before the Tribunal that gave any support to the allegations of fraud at all.

18. Thus when the Tribunal states at paragraph [23] of its decision:

“On the evidence before us we accept that the request is serious and justified in that it related to suspected gross overcharging of Third Parties which was alleged to have been enabled and assisted by the Public Authority. If he was correct in his concerns the Requestor was attempting to identify Fraud.”
and at [27]

“Further we find that the exposure of potential misfeasance in public office is a matter of objective public interest. So too, is exposure, inter alia of evidence of alleged overcharging, withholding information from the public [of] alleged systematic overcharging and fraud by a contractor. We find that the request had an adequate and proper justification.”

the effect was to accord credence to wholly unsubstantiated allegations of fraud
contrary to well established principles of law.

19. It is well established in law that when serious allegations of fraud are made, more
cogent evidence may be required to overcome the unlikelihood of what is alleged, in order to prove the allegation. A case that is merely speculative will not do: Director of the Assets Recovery Agency v Szepietowski [2007] EWCA Civ 766 at [111].

20. The relevant civil standard is the balance of probabilities. However, although there is
one standard in civil cases, it is flexible in its application. The more serious an allegation, the less likely it is that the event occurred and the stronger the evidence needs to be before a court concludes it is established on the balance of probabilities: Re D [2008] 1 WLR 1499 at 1508. In Re D at 1509 [27]- [28] Lord Carswell said:
Richards LJ expressed the proposition neatly in R (N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605, [2006] QB 468 , 497–8, para 62, where he said:
“Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application . In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.”

In my opinion this paragraph effectively states in concise terms the proper state of the law on this topic. I would add one small qualification, which may be no more than an explanation of what Richards LJ meant about the seriousness of the consequences. That factor is relevant to the likelihood or unlikelihood of the allegation being unfounded, as I explain below.
It is recognised by these statements that a possible source of confusion is the failure to bear in mind with sufficient clarity the fact that in some contexts a court or tribunal has to look at the facts more critically or more anxiously than in others before it can be satisfied to the requisite standard. The standard itself is, however, finite and unvarying. Situations which make such heightened examination necessary may be the inherent unlikelihood of the occurrence taking place (Lord Hoffmann’s example of the animal seen in Regent’s Park), the seriousness of the allegation to be proved or, in some cases, the consequences which could follow from acceptance of proof of the relevant fact. The seriousness of the allegation requires no elaboration: a tribunal of fact will look closely into the facts grounding an allegation of fraud before accepting that it has been established. The seriousness of consequences is another facet of the same proposition: if it is alleged that a bank manager has committed a minor peculation, that could entail very serious consequences for his career, so making it the less likely that he would risk doing such a thing. These are all matters of ordinary experience, requiring the application of good sense on the part of those who have to decide such issues. They do not require a different standard of proof or a specially cogent standard of evidence, merely appropriately careful consideration by the tribunal before it is satisfied of the matter which has to be established.

21. It is evident that allegations of fraud are serious; allegations of fraud in which a
government department is said to be colluding are all the more so. The Tribunal’s acceptance of and reliance upon a speculative allegation of fraud was wrong in law and in fact. The Tribunal failed to properly analyse the allegations through the appropriate critical lens. It also failed to give any weight to the fact that unsubstantiated allegations of fraud may itself be an indicator of vexatiousness

(4) The Tribunal erred in finding as a fact that the request was not vexatious as it was completely contrary to the weight of the evidence

22. The Tribunal’s conclusions as set out in paragraph 5 above are unsustainable on the
facts of the case and in the light of the evidence of Sian Jones. All the hallmarks of vexatiousness are present in this case to an overwhelming degree :

22.1. Frequency: The Information Commissioner in her Decision only referred to 24 requests being submitted from January 2016 onwards. This was treated as (and is) sufficient to establish vexatiousness. For the purposes of the appeal to the Tribunal, Highways England carried out a more thorough review of requests by the Appellant and found that since November 2013, Mr Swift has made 62 requests for information or for internal review with increasing frequency over time. There was only one request in 2013, six in 2014, 12 in 2015; 19 in 2016 and 17 in 2017: see Witness Statement of Sian Jones §14. The true picture is in fact far worse and more aggravating that the evidence before the Information Commissioner yet the Tribunal disregarded this.

22.2. Extended Campaign: The evidence bears out the fact of an extended campaign both in terms of the frequency of requests and the evidence that
Mr Swift is instigating, encouraging or assisting other requesters: see Jones §24 onwards.

22.3. Information already provided to the Appellant: The majority of the requests relate to the same information which have been responded to: see Decision Notice §19 and Jones §15. It is clear from the Grounds that the Appellant has been provided with information and/or similar requests have been answered.

22.4. Nature and content suggesting obsessiveness: It is submitted that the evidence of Sian Jones supports a picture of obsessiveness (frequency of requests, content, and the evidence related to Associated Requesters). As Sian Jones notes at §19:

“In terms of the style of his requests, Mr Swift also has a very particular manner. His requests almost always require at least some degree of clarification, as they are typically opaque and difficult to follow. Sometimes they are also very long. I agree with the observation made by the Commissioner in one recent decision FS50716692, finding that HE was entitled to rely on section 14(1) to refuse a request made by Mr Swift . . .to the effect that the meaning of Mr Swift’s requests can be “clouded”, rather than clarified, by the way in which they are written”

The evidence of Mr Swift’s contact with Highways England employee Sarah Green suggests harassment. Ms Jones notes that Mr Swift was telephoning and emailing Sarah Green several times a day and by 22nd March 2018, she had received 58 emails from Mr Swift in the month of March alone: Jones §23.

22.5. Scattergun Approach: Despite attempts by Highways England to ensure that Mr Swift engages with a single point of contact because of the volume of correspondence he was sending, he has failed to do so: see Jones at §22 –
23.

22.6. Tone: Again this speaks for itself. The Requester’s Grounds of Appeal to the First-tier Tribunal themselves without particularisation or justification accused Highways England of providing false information to the Tribunal.
They are also lengthy, impenetrable and tendentious.

22.7. Whether Reasonable Expectation Correspondence would have a negative effect on the health and well-being of officers: Ms Jones evidence is that is has caused “an undue level of personal distress”: §60. She says she ‘dreads opening her emails, for fear that there will be several emails to me from Mr Swift requiring a response”: §60.

22.8. Substantial and disproportionate financial and administrative burden: This is also supported by the evidence of Ms Jones. As she says at paragraph
58:
Mr Swift has been responsible, directly or indirectly for a very high volume of requests for information and for internal review, focusing on a narrow range of overlapping matters, all made with a high degree of frequency. The result has been, in my view, the deployment of a disproportionate level of HE’s FOI and other resource to the satisfaction of requests either made by him, over which he exerts some level of influence, and / or in which he otherwise has an interest.

22.9. Associate Requesters: There was also strong evidence that Mr Swift is further 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. Highways England has identified 9 individuals which it believes are third parties who are associated with Mr Swift (which is not an exhaustive list as noted at Jones §30). These requesters with Mr Swift and the Associated Requesters have made a total of 171 requests for information or internal review since November 2013 (including Mr Swift’s 62 requests): Jones §27. 29.31. Ms Jones fairly notes at §31 “Obviously it is not possible to say that in every instance, requesters are collaborating with anyone else,” but goes on to say:

“I believe that the annotations on WDTK [i.e. the What do They Know Website] demonstrate that:

a. Mr Swift has regularly contacted requesters who have interests in common with his; and

b. Mr Swift appears to treat each such request as an opportunity to continue to pursue matters in which he himself has a particular interest.

At least one of the Associated Requesters (Wayne Verdon) has been identified as an employee at Mr Swift’s company so association in this sense is not an unreasonable inference: Jones at §31. This was completely disregarded by the First-tier Tribunal which (in error) did not take it into account at all stating:

“Nor do we accept that because the Requestor encouraged other such requestors to make their own enquiries that he was acting in concert with them or such other requests should be taken into account when considering the purpose of his own requests”

(5) The Tribunal misapplied the guidance set out in Information Commissioner v Devon
County & Dransfield (GIA/3037/2011) (as impliedly adopted by the Court of Appeal in Dransfield v Information Commissioner [2015] 1 WLR 531 at 6) and CP v Information
Commissioner [2016] UKUT 427 (AAC) including misapplying an incorrect standard to the issue of harassment and distress.

23. This Ground overlaps to a degree with Ground (4). The Ground 4 Submissions are
repeated under this Ground on the basis that the ultimate conclusion was in error in law; it is submitted that if the approach in Dransfield been correctly applied to the facts, the Tribunal would have concluded the request was vexatious. Further, in Dransfield the UTT said at [26] (emphasis added):

“26. . . . I consider that the IC’s Guidance that ‘the key question is whether the request is likely to cause distress, disruption or irritation, without any proper or justified cause’ provides a useful starting point, so long as the emphasis is on the issue of justification (or not). The fact that the OED definition omits any reference to ‘distress’ or ‘disruption’ in quite those terms is no bar. This is because the inclusion of these terms in the IC’s Guidance is justified by extension, given that the purpose of section 14 is to protect public authorities and their employees in their everyday business—thus consideration of the effect of a request on them is entirely justified, adopting a purposive approach. Hence a single abusive and offensive request may well cause distress, and so be vexatious within section 14, applying the ordinary meaning of the word”

24. In considering whether there had been harassment of staff at a public authority, the Tribunal appeared to adopt a wholly remote objective standard to the question that was entirely divorced from the evidence stating “we do not accept that there could or should have been any harassment or distress (of and to staff) in an organisation of the size and import of the second respondent in this appeal” (emphasis added).
Sian Jones’ evidence is that FOI requests are dealt with by an FOI Officer and two further administrative personnel: Jones §9. The Tribunal failed to apply the purposive approach suggested in Dransfield.

25. Similarly, CP v Information Commissioner makes clear at [25] that “the context and history of the particular request, in terms of the previous course of dealings between the individual requester and the public authority in question, must be considered in assessing whether the request is properly to be described as vexatious. In particular, the number, breadth, pattern and duration of previous requests may be a telling factor”. The Tribunal failed to take this into account or give proper weight to the history and the context. It mentioned the need to consider the history at paragraph [20] but then went on to wrongly conclude without any analysis of the history at all that the request was not vexatious.

(6) The Tribunal erred in concluding that there could not or should not have been any harassment or distress of staff caused in a public body of the size and import of the second respondent as (a) it is wrong as a matter of principle, it is clearly possible for staff in any large organisation to be caused harassment and distress and (b) it is wrong on the facts of this case.

26. It is clear as a matter of principle that the issue of harassment and distress is not
related to the size of the organisation. The Protection from Harassment Act 1997 applies to companies: Smithkline Beecham plc v Avery [2009] EWHC 1488 QB at
47. There are numerous cases where injunctions have been granted as against corporations. It is accepted that staff within a public body are expected to deal with Freedom of Information requests and all that normally would entail. However that is not the same as saying that staff can never be harassed or distressed in principle. This is obviously wrong in law and inconsistent with the individual rights of employees.

27. Beyond that, on the facts of this case, there is cogent evidence that the staff did feel harassed and distressed. Ms Sian Jones evidence was wholly disregarded on this point by the Tribunal at paragraphs [63] – [67] including where she stated:

“It is hard to convey adequately on paper but it is personally distressing to in effect be accused of lying, being prejudiced and unprofessional in this way on a repeated basis.”

The findings of the Tribunal at [19] on this issue were contrary to the evidence, overlooked the evidence and were perverse in the light of this evidence. Further, if the Tribunal were inclined to disregard the written evidence in this way, they should have reached the conclusion that it was inappropriate to determine this aspect of the case on paper and held an oral hearing.

(7) The Tribunal erred in concluding that Highways England had failed to properly identify the issues raised by the Requester and that it had not dealt with them adequately or at all.

28. The Tribunal makes this finding at paragraph [17] without any evidential analysis at
all. In fact, it is an incorrect finding of fact that is not supported by the evidence. In the context of the large number of requests and reviews in issue, it is a fundamental error to make such a finding without identifying some evidence in support. The spreadsheet exhibited to Sian Jones witness statement at pp.355 – 359 demonstrates that this finding is unsustainable as it records that many of the 130 individual requests/reviews were in fact fully met.

29. In the premises, Highways England respectfully requests that permission to appeal is
granted and that the Information Commissioner’s original decision is upheld.

11th February 2019 CHRISTINA MICHALOS
Counsel for the Second Respondent