19/01/2021

England Highways

Damage to Crown Property [DCP] Claim Costs

Following the recent dismissal of an application made by the ICO to strike out an application to appeal, upon the basis that my approach was vexatious, I was moved to write as below to the ICO setting out why they appear to be the vexatious party, ignoring factual evidence and siding with Highways England in their historic allegations, which were also dismissed; but why abandon an inconvenient truth when you hope that some of your mud might stick? Fortunately, the upper Tier Tribunal are impartial, consider the factual evidence, and listen to both sides…


Dear Information Commissioner,

I find myself writing to you again today under reference 44703-Y9Z8, to express further concerns.

I understand my requests/complaints are too time-consuming, complex for the ICO.  You cannot be troubled with reading my submissions; you expect a Tribunal to do the work. It is concerning, however, that this is not conveyed to Tribunals, that you issue ‘Decision Notices’ without conveying this superficial, unfair conduct thereby adding inappropriate credibility to the Authority’s position and potentially increasing the hurdle a requestor perceives they need to overcome if wishing to Appeal.  This conduct detracts from the Act, reduces its effectiveness.  I understand you cannot adopt a ‘cannot decide’ stance.

My requests/complaints are not treated on their own merits.  Out of hand, you accept ‘vexatious’ in support of a major, well resourced, Authority, Highways England.  This conduct is demonstrated in my earlier email and below about your ref. 44703-Y9Z8, in which you recently supported the Authority’s ‘vexatious’ stance when I sought information pertaining to Highways England responses to 175 requests/reviews.  I am not seeking comment upon this, the matter is the subject of an Appeal.  It does, however, appear perverse that I am the subject of criticism:

  • Between 2013 and 2018, Highways England state I progressed 57 DCP (damage to Crown property), rate-related requests/reviews, other parties made a further 118.  to each approach, the Authority complied with s1 of the Act and determined the information was HELD.  But they withheld citing ‘commercial sensitivity’ and when frustrated by my persistence cited the ‘vexatious’ exemption which you supported.
  • 12/2018, a Judge found against you both but rather than release the rates, Highways England threw themselves on their sword ‘confessing’ they had provided false responses … there are no rates. I cannot tell what information, subsequently said not to exist, they were reviewing.
  • The Authority had collated these 175 matters seeking to demonstrate I was vexatious.  What they appear to have done is compile evidence of their annoying, troublesome, vexatious conduct.  But why should an Authority care if they provide accurate information? What enquiry was made of their conduct; what explanation sought, what advice was given or punishment/warning administered to Highways England following discovery they had misled time and time again? None. An Authority cannot be held to be vexatious.  Where is the Authority’s own review of their conduct, their attempts to understand how they went so wrong, so often (175 times) and prevent recurrence?  Of course, an internal enquiry would be pointless if the ‘not held’ stance was known to be false, a ruse.

Subsequently, when I sought to understand the above 175 ‘false’ replies (FoIA request ref. 44703-Y9Z8), that request was again considered vexatious by the Authority, again supported by the ICO.  However, the ICO’s approach appears as prejudiced as that of the Authority.  I have today received directions from a Tribunal in respect of Appeal reference: EA.2020.0338 which, 24/12/2020, you (not the Authority) sought to have struck out advising @ para. 33:

‘The Commissioner is aware that striking out an appeal is a draconian measure that should not be used lightly.’

But you used this heavy-handed approach lightly, inappropriately; why else was this draconian measure engaged utilising irrelevant grounds? 06/01/2021, the Registrar wrote:

Therefore, this appeal [EA.2020.0338] cannot be about whether Mr Swift’s request was, or was not, vexatious because (to put it simply) the Decision Notice appealed did not find that it was vexatious.

The above faux pas evidences a predilection to ‘vexatious’ by the ICO in respect of my matters, even when it is not an argument previously presented!

I am seeking a fair, reasonable and professional approach to my requests. I have genuine issues which I am asking you to consider rather than dismiss them out of hand.


Linked:

23/12/2020 Highways England’s attempt to blanket ban the use of FoIA for claims

08/01/2021 notes regarding the ‘Responses to 175 FoIA Requests/Reviews’ appeal.