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Mr Roger Thomas
/ Department for Communities and Local Government
030 3444 0000

Our Ref:F0008083, F0007961
9 December2014

Dear Mr Thomas,

Freedom of Information requests F0008083 and F0007961 - Internal Review

You have requested an internal review of your information request, reference F0008083. I will also refer to request F0007961 in this response, for reasons given below. I have not been involved in any of the previous FOI requests or correspondence on this matter.

For clarification, I would like to begin by summarising the history of theserequests. Note that only key correspondence is listed here, see appendix 1 for a more detailed list.

Case ref F0007550

In December 2013, following a considerable exchange of correspondence between you and the Department for Communities and Local Government (DCLG)on the subject, you requested “…transcripts of telephone and other verbal communications between DCLG officials and Arun District Council; information from an investigation into Arun District Council; and information on DCLG’s powers in respect to local authorities.” The department responded to this on 23 January 2014, and you requested an internal review of this response on 5 February. The results of this review were communicated to you on 7 March, and said in summary: (i) the department does not usually keep transcripts of telephone calls, (ii) there was no investigation of Arun District Council, and (iii) that a response to the last question (DCLG’s powers in respect to local authorities) would have constituted legal advice, which we cannot provide.

Case ref F0007678

On 5 February you requested “…all communications, verbal or written that the DCLG had with Arun District Council that emanated from my letters to Secretary of state for Communities and local Government, Eric Pickles regarding the Bognor Regis regeneration plan…. any lobbying ….to stop the communications of the DCLG with Arun District Council over the Bognor Regis Regeneration Plan… remit where it states that the DCLG cannot investigate or interfere with a local authority.”.. The department responded on 6 March providing what information it held, but letting you know it held very little on these matters. You requested an internal review on 18 March, the results of which were communicated to you on 23 April, upholding the original response.

Case ref F0007961

On 19 June you requested a copy of Nick Gibbs MP’s letter to Eric Pickles regarding a meeting with youand Messrs’ Dixon, Ellis and Coster, so that you “…could appraise ourselves of the content in advance of our meeting with Eric Pickles…“. The department issued a responsein June, saying it regarded your request as vexatious on the grounds that it appeared to be a method of obtaining a response from the Department rather than a genuine request for information, particularly as there was no meeting scheduled between you and Mr Pickles. The department stated that it considered this correspondence to be at an end and would not respond to further FOI requests from you on this matter, which would have included a request you issued on 27 September for an internal review of the department’s last response.

Case reference F0008083

On 6 August DCLG received an email from youand Messrs’ Dixon, Ellis and Coster for “All of the appendices included with our e-mails (this will establish if our e-mails have been received); The letter from Nick Gibb MP in which he forwarded our concerns to you.All internal communications relating to this matter, including e-mails, notes of meetings, notes of phone calls etc. All communications between ministers or officers from DCLG and councillors or officers at Arun District Council relating to our complaint.”

The department did not respond to this last email as it regarded it as being part of the same correspondence as case F007961.

Following discussion withthe Information Commissioner the department has agreed to complete a review of case F0007961, and will include F0008083 in the response as they are broadly the same matter.

I have looked through the considerable correspondence between you, Mr Dixon and DCLG, and given serious consideration to the responses the department has provided.

A key document in this matter is DCLG’s response to your request ref F0007961, in which it stated that it considered your request to be vexatious. There are some clear flaws in that response.

  1. It did not appear to comply fully with Section 1(1) of the Freedom of Information Act in that it did notstate whether or not the information is held in a recorded form.
  2. It does not comply with Section 17, the requirement to issue a proper refusal notice. A proper refusal notice would have made a clear reference to section 14 of the Act. (S14 states that “Section 1(1) does not oblige a public authority to comply with a request for information if the request is vexatious.”)
  3. It should also have made reference to section 17(6) of the FOIA when saying that it wasits intention, shouldit receive further requests for information on the same subjectmatter, not to respond.

For clarity, s17 (5 and 6) state:

5) A public authority which, in relation to any request for information, is relying on a claim that section 12 or 14 applies must, within the time for complying with section 1(1), give the applicant a notice stating that fact.

(6)Subsection (5) does not apply where— .

(a)the public authority is relying on a claim that section 14 applies, .

(b)the authority has given the applicant a notice, in relation to a previous request for information, stating that it is relying on such a claim, and

(c) it would in all the circumstances be unreasonable to expect the authority to serve a further notice under subsection (5) in relation to the current request.

In mitigation of these issues, DCLG did make it clear thatit regarded your request as vexatious, and in your request for an internal review you did not refer to any of these technical faults. I therefore conclude that, while the response was flawed, these were not serious flaws and not pertinent to your complaints.

Turning then to your complaints which were that:

  1. You did not receive a response to your requests for an internal review of either request
  2. There is no connection between the later requests (F0007961 and F0008083) and the earlier requests (F0007550 and F0007678)
  3. Yours is a legitimate request under the FOI Act and not vexatious

To take these in turn

  1. You did not receive a response to your requests for an internal review of either request.

Unfortunately your request for an internal review was sent to Johanna Howarth, not to as requested. Johanna had moved to the Cabinet Office by then, and there is no record that I can find of your letter being received by anybody in DCLG. It may have been lost in our internal postal system, but the first the FOI team knew of it was when they received a copy from the Information Commissioner.

When the FOI team received further emails from you requesting a response to your internal review request, they were confused as they had not received such a request. It also took some time to link the two requests (Tony Dixon via What do they Know, and Roger Thomas via email and letter) and realise they were in effect the same request. Taking into account that they also thought correspondence with you was closed, they decided not to respond to the later emails asking for updates.

My conclusion here is that DCLG was in error in not responding to your internal review request. The error was perhaps understandable given the quantity of correspondence going via various channels to different parts of the organisation, but it was an error nevertheless. This internal review will, I trust, correct that error. I would also like to apologise, on behalf of the Department, for the mix-up and the delay in responding.

On your next point,

  1. There is no connection between the later requests (F0007961 and F0008083) and the earlier requests (F0007550 and F0007678).

My opinion is that these requests are clearly for related information, all connected directly to the project by Arun District Council. In particular your request in F0007678 for

All internal communications relating to this matter, including e-mails, notes of meetings, notes of phone calls etc. All communications between ministers or officers from DCLG and councillors or officers at Arun District Council relating to our complaint

is decidedly similar to your request in case ref F0007678 for

all communications, verbal or written that the DCLG had with Arun District Council that emanated from my letters to Secretary of state for Communities and local Government, Eric Pickles regarding the Bognor Regis regeneration plan…. any lobbying ….to stop the communications of the DCLG with Arun District Council over the Bognor Regis Regeneration Plan.

DCLG was therefore justified in treating these as correspondence on the same issue.

The piece of correspondence you are most concerned with appears to be the letter from your MP, Mr Nick Gibbs to Eric Pickles, requesting that Mr Pickles meets you to discuss this.

It is possible that this may be regarded as a separate piece of information from that which you had already requested, although this is arguable and my opinion is that it is in the same vein, relates to the same issue, and is requested with the same objective of fighting the decision by Arun District Council.

Even if this was not the case, DCLG would not release this letter on the grounds that Mr Gibbs clearly did not wish it to be released, and it could be withheld under s40 (personal data) of the Act.

You also sought assurance that your emails had been received. While, for the reasons given above, I cannot furnish you with the documents, I can personally assure you that they were.

Finally I come to the issue of whether or not the requests were correctly regarded as vexatious. The reasons given in the earlier response were:

we consider that you are using the FOI Act as a method of getting a response from the Departmentnow that the relevant policy team and ministerial correspondence team are refusing to respond to your letters, and you have exhausted the formal complaints process.

your main purpose is not to seek information, but you are using FOI as a way of opening a debate and pursuing your grievance against your local authority. DCLG has made it clear that we are not prepared to act in this matter, and explained why on several occasions. My colleagues in Mr Pickles’ private office inform me that no meeting between yourself and the Secretary of State has been scheduled.

And in addition;

We have already provided you with all of the information we hold on this matter, as well as considerable guidance and explanations relating to the Bognor Regis Regeneration Plan.

Having examined the case in detail I agree with this conclusion. The Department has provided you with considerable information and advice on this issue over the last two years. While it is clear that you object strongly to the proposals, DCLG is not the organisation that you should be approaching to have the decisions overturned: that would be a matter for the local authority.

When the policy team ceased responding to your correspondence, on the grounds that there was nothing further they could do and that they had provided all that they could, you turned to the Freedom of Information Act to try and force the Department to investigate the matter further. This was, quite correctly, treated as vexatious. It is my opinion that all of your FOI requests, including F0007550 and F0007678, could rightfully have been treated a vexatious as they followed a statement by the Department on 9 December 2013 that it would not be responding to any further correspondence, and were mainly for information relating to an investigation which, you had already been informed, did not take place.

The Freedom of Information Act was not created so that correspondence could be continued indefinitely, or as an alternative to valid approaches to objecting to government or local authority polices and plans. To quote the Information Commissioner “Vexatious requests tend to bring the Act into disrepute, and are therefore not in the interests of responsible users.”[1]

I hope that you are satisfied that the Department hasproperly dealt with your request for information. Please note that, as DCLG has treated this as a s14 (vexatious request), it will invoke s17(6)(c) it would in all the circumstances be unreasonable to expect the authority to serve a further notice under subsection (5) in relation to the current request and will not be responding to any further communications on this issue.

However you may write to the Information Commissioner at:

The Office of the Information Commissioner

Wycliffe House, Water Lane

Wilmslow, Cheshire SK9 5AF

Telephone: 01625 524 700

Email:

David Smith

Departmental Record Officer

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[1]David Smith, Information Commissioner, Commons Select Committee 2012.