The ICO lacks the resources to do a thorough, professional job yet fails to advise Appeal Tribunals of this. It appears Tribunals are unaware the ICO:
- lacks time/resources
- does not read information presented before reaching a decision
- expects a Tribunal to look at matters in detail
‘c’ assumes that the party misguidedly placing its faith in the ICO will, after the ‘knock-back’, in the knowledge they will have to overcome this rejection of their complaint, on the back-foot, retains sufficient confidence in the system to progress.
When presenting a complaint to the ICO, the requestor (and Tribunal) should be aware of the ICO:
- cannot look at the matter probably at the in-depth level a lot of the information is presented
- has not got the resources to go into huge amounts of in-depth analysis
- cannot consider lengthy documentation (such as we submit to corroborate a request/complaint)
In one instance we were informed to ‘let the tribunal pick up on all these points’ – the matters we had documented to the ICO but which they were clearly unaware of (through a lack of attention)! The ICO expects the tribunal to hear the case again, that they may reach a different view – albeit armed with a dismissive account (DN) from the ICO resulting from a lack of (or one-sided) consideration.
We would suggest the ICO refrains from making Decisions declaring matters ‘undecided’ and/or informs Tribunals that their findings should not be relied upon.
In APPEAL: EA/2018/0088, a request for Damage to Crown Property (DCP) rates, we not only had to present our case to a Tribunal such that we overcame the Authority’s objections and allegations, but we were also prejudiced by the ICO’s endorsement of it. However, both were dismissed by the Court.
That should have been the end of the matter, the rates should have been provided. But the Authority appealed (dismissed) then escalated their appeal – again dismissed with Highways England being told they should comply with the law.
But what was never hinted at to us, the ICO or the Tribunal was that despite stating time and time again (175 times – see above) the DCP rate information was held (in accordance with s1 FoIA), the Authority was in a win-win situation:
- If their attempt to have us labelled vexatious was successful, they could/would cite this, us it against us.
- If their attempt failed, as it did, they engage ‘plan B’; claim there is no such thing, that the rates do not exist and contradict 175 requests/reviews!
Withholding information is a criminal offence – s77 FoIA. However, the Act being in place for 20 years the ICO has only ever had one (recent) successful conviction. A reason for this, according to Damn=mian Moran of the ICO is that the offence is ’empty threat legislation’. Another appears to be that they set the bar very high for action.
In the UK there are two levels of PROOF **, ‘balance of probabilities’ or ‘beyond reasonable doubt’
When deciding whether there is enough evidence to charge, Crown Prosecutors must consider whether evidence can be used in court and is reliable and credible, and there is no other material that might affect the sufficiency of evidence. Crown Prosecutors must be satisfied there is enough evidence to provide a “realistic prospect of conviction” against each defendant.
Source: The Code for Crown Prosecutors
But the ICO has another level that, whilst they will not describe it, appears to be ‘unattainable’.
However, the ICO appears confused. They are not actually talking about ‘PROOF’ i.e. the process of establishing the validity of a statement by derivation from other evidence in accordance with principles of reasoning because their ‘standard’ is one that avoids the need to demonstrate something, requires no need to ‘prove’. the Authority wants a confession.
The ICO appears to be a law unto themselves seeking only to take on matters guaranteed to succeed. Is this a reputational or bragging issue, possibly intended to avoid criticism, conflict and/or cost?
Whatever the reason, we continue to press Andy Curry of the ICO for an explanation of this 3rd standard of proof, the cast-iron approach to prosecution, we are also questioning his understanding of the facts.
- For years we have been seeking the contractually agreed rates between Highways England (HE) and Kier Highways
Highways England repeatedly, convincingly stated ‘held’ without any suggestion they were ‘the king’s clothes’. But, faced with having to disclose the data they had been protecting for years, they volte-face … this commercially sensitive information we hold … is non-existent so you cannot have it.
But the evidence these rates exist has piled up with recent admissions that file names we have presented are for schedules of DCP rates. Then in August 2020, Highways England presented two ‘sample’ Kier Highways claims to a Cardiff Judge. The approved Judgement has recently been made available to us and includes (para 6.iv) the sentence:
‘For repairs valued in excess of £10,000 Highways England are charged by Kier using contractually agreed rates’
‘Contractually agreed rates’; the very rates we wish to be provided, the ‘held’ information but which to us is not held. There is an unequivocal contradiction that no one has yet explained – though a further FoIA request has been made.
We have returned to the ICO as, whilst Mr Curry has yet to explain his stance, Frederick Aspbury (ICO) believes our attempt to reopen the section 77 investigation is a clear reflection of ‘unreasonable persistence’. Really? Or is the ICO doing their utmost to avoid confronting a large Authority willing to throw funds and resources at an issue, misrepresent facts and confuse?
Seemingly, an Authority cannot be unreasonable or vexatious, that there is no deterrent.
And what of APPEAL: EA/2018/0088, the rates that clearly exist but were withheld? This matter has been returned to the ICO as the Authority, despite the Tribunal findings, has not disclosed the rates. The ICO’s attitude appears to be further evidence they want for a quiet life, to be involved in nothing contentious or requiring thought – they have sent us back to the Tribunal citing ‘Moss’ (GIA_1940_2018 Moss Judgement) the current impasse about who should do what when a Judge points out the failings of the ICO.
** In the three jurisdictions of the UK (Northern Ireland; England & Wales; and Scotland) there are only two standards of proof in trials (source)