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Why I have decided that the FTT decision involved a material error of law and falls to be set aside
Why I have decided that the FTT decision involved a material error of law and falls to be set aside
The core of the FTT decision was that none of Mr Burton’s grounds of appeal engaged the FTT’s jurisdiction under s58(1), namely, consideration of whether (in this case) IC’s decision notice was not in accordance with the law, or that it involved an exercise of discretion by IC and IC ought to have exercised that discretion differently. (In what follows, for shorthand, I will refer to a decision notice considered unlawful or an incorrect exercise of discretion, in s58(1) terms, as “wrong” by reference to the law or discretion it was purporting to apply or exercise.)
The FTT decision is brief in explaining how it formed this view, saying little other than that Mr Burton’s appeal grounds “simply do not engage with” the FTT’s jurisdiction; it seems the FTT considered it self-evident from Mr Burton’s grounds, as it summarised them at [4], that this was the case.
Part of the permitted grounds for this appeal was that the FTT decision, in forming the view that Mr Burton’s appeal grounds did not engage the FTT’s s58(1) jurisdiction, arguably did not “do justice” to Mr Burton’s grounds; in particular, it was arguable that limb (a) of Mr Burton’s appeal grounds, as summarised in the FTT decision - “a challenge to the ‘cost of compliance’ (although s12 FOIA is not relied on in the Decision Notice)” - mischaracterised the ground as an argument that IC’s decision notice was “wrong” by reason of its application of s12 (exemption where cost of compliance exceeds appropriate limit); whereas, on a fair basis, Mr Burton’s ground was that IC’s decision notice was “wrong” by reason of its application of s14 (in putting exaggerated weight on the cost burden (calling it “grossly oppressive”) in the holistic assessment of what is “vexatious” request, as required by the relevant case law).
IC’s response to this appeal argues that it was not an error for the FTT to interpret Mr Burton’s case as being that IC’s decision notice was “wrong” (solely) by reason of its application of s12 (such that, on the FTT’s interpretation, Mr Burton’s case did not allege that IC’s decision notice was “wrong” by reason of its application of s14).
In my view, this issue is resolved by examining Mr Burton’s appeal grounds, as set out in section 5a (grounds of appeal) of Mr Burton’s notice of appeal to the FTT:
“My FOI request to the DHSC in its original form, submitted 13th October 2020, was rejected on the 'section 12' basis that time required to search out the information requested would exceed 'appropriate limit for cost of compliance' of £600 worth of a clerk's time, as noted in sections 67 to 72 if the ICO decision notice, with The Commissioner stating that rather than requesting internal review by the DHSC (which would have without doubt resulted in the same response) the complainant accepted the DHSC application of section 12. This is incorrect, I did not accept the application of section 12 but having been told by the DHSC in their response that rules of FOI state section 12 was applicable and the FOI therefore would not be answered, but I could submit a 'trimmed down/less intense effort required' request, I did so and revised my request on 10th November 2020 as noted in section 6 of the ICO decision notice. My revised request was not responded to until 2nd June 2021 despite many intervening requests for response, with the response being a refusal citing that whilst the requested information did exist section 36(2)(c) 'the effective conduct of public affairs' was being applied - one might ask what could be any more of an affair the public should have access to information for, than results of a public consultation? In the response was no mention of 'section 12' as their had been to my original request. I requested a DHSC internal review on 21st June 2021 contacting the ICO also same date and unsurprisingly after several more months of my chasing, the refusal citing section 36(2)(c) was maintained in a response on 11th October 2021, as noted in section 9 of the ICO decision notice. Further complaint investigation that I requested of the ICO, who challenged the basis for section 36(2)(c) application, eventually resulted in a revised response from the DHSC back to citing section 12 once more (as per original request) and section 14 'vexatious requests', as reason why the revised request information would not be released and with previously not advised rationale that the single summary report requested in my revised request, did not indeed exist, only a set of 166 summary reports which would would trigger the 'appropriate limit for cost compliance' criteria. I still find this hard to fathom as to why this response wasn’t given in June 2021 if a single summary didn't exist and it does seem odd that I am expected to believe that health chiefs and government ministers, had to work with 166 individual and lengthy reports to inform their decision in a very short review period when they were all extremely busy? I also find it hard to fathom as to how a request for results of a public consultation to be released, with some 22 months now having passed since the consultation, could be considered 'vexatious'. Even if the amount of effort should exceed the £600 worth of a clerk's time, revise estimated by the ICO on review of DHSC estimate being approximately 83 hours at £25 per hour (£2,075), this is surely 'a drop in the ocean' to a government department with the size of budget the DHSC holds (remember it spent £35billion on test, track and trace, £billions on the vaccine roll-out programme and many more £millions on PPE procurement contracts)? Further suggestions sumarised in the decision notice section 36, as made by the DHSC and apparently agreed with by the ICO that the majority of respondants to the vaccine consultation were by organised 'anti-vax' groups and their responses contained mis and dis-information is surely and quite simply ludicrous and entirely subjective, as there is not and can not be any definitive / cast iron guaranteed safety and efficacy information about a novel technology vaccine that was to be, and indeed was, brought into use in a fast tracked emergency licence arrangement without having undergone full clinical trials to include mid term and long term studies. Section 37 of the decision notice appears to be even more ludicous and quite frankly disturbing, in that it states that the disclosure of opinions of those opposed to covid-19 vaccination (bearing in mind we now have evidence that the vaccines have killed people and the government has begun paying out compensation to victims), would risk damaging uptake of the vaccine. This is nothing more than medical censorship in what is supposed to be a democratic country. Section 40 of the decision notice is also questionable as it intimates ballanced information relating to covid-19 vaccinations (composition and safety?) is already available in the public domain, when in fact government, health agencies and mainstream media channels have actively stifled any presentation of information that challenges the desired view of government, that the vaccines have been the only answer to covid-19 and are anything other than completely safe and effective (they budgeted over £300million pounds for media services contracts to drive this message 24 hours a day, 7 days a week, for 2 years and are still driving it). In summary of the above, my appeal is a reiteration of the stance that I have taken throughout this FOI request, that the results of a public consultation (which should have been made publicly and timely viewable as a matter of course) should be released to me as requested and that the ICO decision to support the DHSC refusal to release is flawed and should be reversed, demanding release, as the grounds for withholding are insufficient in context of the importance of the information to the general public of this country.”
I have highlighted wording in the above which, in my view, makes it clear that Mr Burton’s case was not limited to saying that IC’s decision notice was “wrong” in its application of s12 (but, rather, included saying that IC’s decision notice was “wrong” in its application of s14).
It seems to me that the highlighted wording, read in context and rephrased in more “legal” language, is an argument that, in the holistic balancing exercise required to determine whether a request is “vexatious”, it is relevant, when considering the cost burden of complying with the request, to consider the costs relative to the resources available to the public authority; whereas, in contrast, the “fixed” cost figures that govern s12 (alluded to in Mr Burton’s reference to “£600” in the highlighted wording) have little or no relevance. The argument is therefore that IC’s decision notice was “wrong” to have disregarded a relevant factor (the cost, relative to overall resources available) and to have paid regard, or overmuch regard, to a factor of little or no relevance (figures derived from s12, which IC’s decision notice referred to as “limits” at paragraphs 52 (“grossly above the 24 hour limit”) and 55 (“double the limit prescribed”) and which appears to have informed its view, implied by paragraph 56 and by paragraph 2, and as understood by the FTT decision at [2], that the cost burden of Mr Burton’s request was “grossly oppressive”).
I think it right, given that Mr Burton was not legally represented and that tribunals have an “enabling” function (and, per the overriding objective of their procedural rules, are to avoid unnecessary formality and ensure full participation by the parties), to rephrase Mr Burton’s argument as I have done above; it is a matter of taking an argument expressed in “lay” but perfectly understandable terms (the cost burden of compliance was a “drop in the ocean” in the context of DHSC’s budget) and fairly drawing out its legal implications, in the context of the case; it is not a matter (as clearly would be improper) of expanding or (in substance, as opposed to legal form) improving Mr Burton’s arguments. Nor, for completeness (as this point was raised in the IC’s response to this appeal at paragraphs 31-32), is it a matter of “reformulating” an appeal under one statutory provision as being under a different such provision (as it is, in my view, perfectly clear that Mr Burton’s appeal grounds were alleging that IC’s decision notice was “wrong” in its application of s14).
It follows that, to the extent that the FTT decision was on the basis that Mr Burton’s case was confined to the IC’s decision being “wrong” in its application of s12 (and did not extend to IC’s decision being “wrong” in its application of s14), that was an error of law in the FTT decision, as, in my view, it is quite clear that Mr Burton’s case was not so confined.
I add, for the avoidance of doubt, that to the extent that the FTT decision can be read as having recognised that Mr Burton’s case relied, at least in part, on IC’s decision being “wrong” in its application of s14, in my view the FTT decision erred in not explaining its reasons adequately; in particular, it failed to engage with Mr Burton’s s14 “drop in the ocean” argument (as articulated at paragraph 18 above), and explain why, in its view, it was fanciful.
The error (or errors) described in the preceding paragraphs was (or were) material to the FTT decision; for this reason I consider it appropriate that the FTT decision be set aside.