If the new paradigm of employability is “usefulness from a distance”, outgoing Information Commissioner Elizabeth Denham certainly satisfies element number two, as she ran the Information Commissioner’s Office from her home in Canada for six months in 2020..
As to usefulness, the recent Open Democracy report, “Art of Darkness
How the government is undermining Freedom of Information” by Lucas Amin calls that into question, taking a long and wide view of funding cuts to the department as well as the sinister ‘Cabinet Office’ clearing house.
The report assumes a 41% budget cut over the same decade that has seen a 46% increase in ‘casework complaints’. The result is that funding per complaint has decreased 60% to £589. (p.30). This is scarcely enough for one terse letter from a London lawyer, but a lot of people apparently don’t even get that.
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The report indeed found:
“evidence to suggest that the Clearing House’s primary function is to monitor and obfuscate FOI requests submitted by journalists and campaigners that the Cabinet Office perceives as reputational risks.” (p.15)
The lack of action on stonewalling was a major finding of the report leading, to a recommendation to:
“Introduce an administrative silence rule whereby a failure to respond to a request within the requisite time period is deemed to be a refusal and can be appealed in full to the ICO.”
This is where it comes a bit unstuck, because The Art of Darkness report, running to 39 pages, does not mention vexatious exemptions at all, as shown here.
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It’s true the report’s remit didn’t stretch to legal action, but “Section 14 Vexatious’” is just a category, like ‘information not held’, which is featured, shown below, so ‘vexatious’ shouldn’t be left out.
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The growing number of withheld requests (a 14% rise since 2010), seems to match the reduction in those granted (18% drop in the period), surely they can’t all be ‘stone-walling’. And even if they are, where does that leave Alan Dransfield, whose name garnishes thousands upon thousands of Section 14 (Vexatious) exemptions by public bodies, and who has been told that his communications will not even be read by the Information Commissioner’s Office going forward: i.e. relegation from a category not even mentioned in the Open Democracy report.
How stone-walling is that?
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Alan Dransfield – FOIA Campaigner and Social Watchdog.
Dransfield became preceding commissioner Christopher Graham’s ‘vexatious’ scape-goat when his request for information on lightning protection on the Exeter Rugby ground pedestrian bridge was refused under Section 14 (vexatious). Dransfield appealed and won.
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It must continually be re-stated, among all the obfuscation, that it was not Devon County Council that appealed the decision at the First Tier Tribunal, but the Information Commissioner’s Office itself under Christopher Graham. The same transparent and accountable office that held the Devon CC’s hand to overturn the appeal judgement, now stonewalls Dransfield, using the trail of destruction they reeked in the process as their justification.
Never mind that Dransfield’s public interest concerns proved entirely founded as the plans for the rugby bridge had no lighting protection provision, or that it was quietly retro-fitted after the fact. His colourful manner and characterful insights, have been used to create prejudice in order to define and use him as a vexatious scape-goat, on up to 15,000 refusals of information, on subjects ranging from the Libya, (overturned eventually on appeal), Jimmy Savile, Julian Assange, and of course Covid.
Not that you’d know to look for any of this in the report, as it simply isn’t covered even though Dransfield’s name is implicitly woven through the statistics, which one might have thought would be relevant to dark arts, as well as to the recommendation to raise standards of compliance:
“Open a committee-led inquiry into the operation of the Clearing House, which comprehensively investigates whether its operation is GDPR-compliant, whether journalists are being monitored and/or blacklisted, whether it undermines the applicant-blind principle of the Act, whether its operation leads to delays in the request process and whether its advice is legitimate.” (p.37)
Interestingly although the report found ‘evidence‘ of the clearing house being used to onitor and obfuscate requests from both journalists and campaigners, protection from this ‘monitoring and/or blacklisting’ is recommened only for journalists, presumably campaigners can look after themselves.
They’ll have to won’t they. The lack of mention of vexatiousness in the report is a failing, not least in view of the veracity of Mr Dransfield’s claims. It’s also rather an odd omission by its completeness, especially given the sexy ‘Art of Darkness’ title which seems to promise ‘the depths’.
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The ICO’s “relatively fast and cheap” informal resolution on a “substantial part of its workload” is achieved by not producing detailed records apparently, leading Amin to conclude “the data does not exist”. (p.16)
This claim seems far-fetched and under questioned given how mediating lawyers love clean copies, but at least the same answer can be given to FOI requests on Non Disclosure Agreements (NDA’s).
The lack of such documentation adds to the quasi transparent soup out of FOI, making it harder to identify offending authorities and to correct them, and leaving the system, as the report suggests, ‘open to abuse’.
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For example in early 2020 the First-Tier Tribunal, together with the Information Commissioner’s Office, began a very hands on exploration of Lady Arden’s 2015 definition of vexatious as “a question entirely without merit either to the questioner or to the public”. In the wake of the first global Covid-19 lockdown in March 2020, with wall to wall global fear porn, it must have seemeed only logical to spend time, money and media minutes questioning the free flow of information based on national boundaries.
The ‘territoriality’ affair was started by a Tribunal Registrar, Rebecca Worth who, perhaps having a touch of the vapours, suddenly ‘issued a series of stays on FOIA appeals from overseas’, according to Computer Weekly. (These were requests for information that had already been refused by the public body recipients, now being re-questioned, again from outside the UK.)
The vaporous misgivings were then upheld on Appeal by ex-Foreign and Commonwealth Office legal operations lawyer, Judge Moira Macmillan.
Cue flurries of expensive public legal activity to explore the issue with high profile Barristers from not one but two prominent chambers…. and the answer, announced at the end of 2020 around the same time as the “Art of Darkness” report was published, was a self-congratulatory reassurance that the FOIA is indeed ‘applicant blind’, which Computer Weekly referred to as a “Victory for free speech and openness” . This marvellous verict was judged by UT Judge Mark O’Connor and, guess who, Judge Moria Macmillan.
“There is no provision in the Freedom of Information Act for the tribunal to develop access rules to say who can make a request, gushed 11KBW Barrister Harani Iyengar, “There is simply no starting point for the tribunal to do that.”
“FOIA is concerned with how information should be put in the public domain, and not on the character of the person applying”, she also commented.
If the irony of that statement doesn’t raise a question about why all this was happening, perhaps Harani’s statement that “the hearing was unusual because all the parties were taking the same view” might give you pause for thought.
No? How about the fact that all this was to “test” something that
is clearly stated in paragraph 49 of the explanatory notes on the Freedom of Information Act itself? A quick search reveals the same principles also clearly stated in other, ICO public interest documents.
“There is a public interest in promoting transparency about the UK government and public authorities, although requesters do not have to be UK nationals or residents.” And “The public interest test is about what is in the best interests of society in general, and this includes citizens of other countries.”
In fact it goes further:
“Arguments based on the requester’s identity or motives are generally irrelevant.” (emphasis added)
If this doesn’t at least make you ask why such big globs of chocolatey sweet lawyerliness needed to be spread over FOI, during the global events of the last year, perhaps you’ve been eating a bit too much chocolate yourself.
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With customary brashness and genuine strength, Dransfield insists he ‘doesn’t give a damn’, and only cares that each time his name is used in this fashion it is to deny other requesters their legal, civil and human rights. Given the state of information theatre, would any of this jiggery pokery be visible at all without his pithy resilience?
Dransfield’s scapegoating by the Information Commissioner’s Office
to define what vexatiousness is, now invisibly drives further expedient redefinition of what it is not. This endeavour is helped by the burgeoning vocabularly coined by Judge Wikely including ‘smart’ words like “holistic” and “protean” to help sort the vexatious from the stone-wallable.
Vexatiousness doesn’t lie in requests, or even appeals to the Information Commissioner’s Office from overseas, silly, neither does it lie in pointless and wasteful legal action by judges and lawyers: of course not. What it comes down to is trust. If you trust the font, the layout, the stamps because they’re ‘official’, you will never look further. Job done.
Mouthy characterful upstart ordinary common people, like engineer and boxing coach Alan Dransfield, with possibly more neck than many, always upset the nice veneer of propriety behind which unholy consensus otherwise all too easily rocks on. How can corruption be avoided when the mechanism for covering it up is portrayed and perceived first as scrutiny, and then as proof of transparency?
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Exemptions to FOI are almost bound to increase, as they are already steadily doing, as the “new normal” sees danger in the most asinine of questions. Judge Wikely has effectively sealed that deal in his latest judgement of Dransfield, by confirming that Human Rights under European Law don’t count (para 31) as long as someone can make submissions in the first place. This was followed by the suggestion to seek judicial review, or visit the Health Service Ombudsman (PHSO), presumably all offered with a straight face and not in the least vexatiously.
All this can only guarantee more bureaucracy, not open information, and the bottom line can’t take it already. These are lean times for government reputation management and it’s their own fault, but try telling them that.
It’s not hard to see how Michael Gove’s absolute power over FOI legislation as Lord chancellor to the Duchy of Lancaster, ergo Elizabeth II, compounds and perhaps explains much of the stirred sediment frothing around the clearing house kennels in the half light under the study of the Art of Darkness.
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A little information theatre was just the thing: a bit of a coo over Ms Denham’s personal reputation, how wonderfully she’d managed running the Information Commissioner’s Office from abroad.
Questioning the principle of territorality of information during a global pandemic was a nice PR opportunity for lawyers to wax lyrical about Parliament’s intentions of openness, accountability and, yes ‘requester blindness’ in passing FOIA in the first place.
KBW lawyer Harini Iyengar’s sacharine description of FOI requesters as ‘mystery shoppers’ for the Commissioner, seems to reflect that fact that some little ICO elves were sent out for chocolate and spent over £6,000 that the ICO is now investigating itself for: somebody was splashing the cash about something.
6K on chocolates on solstice 2020? ” width=”300″ height=”125″>11KBW’s relationship with the Inforation Commissioner’s Office may be sweeter than ever, but prominent Human Rights chambers like Doughty St joining in with expensive liigation theatre to protect things that are very obviously already safe, is something you don’t see very often apparently.
And you really never see them sticking up for ordinary people like Mr Dransfield, whose original FOI re lighting protection in Exeter (that was not safe), as with the campaigner’s other requests for health and safety information, like his enquiries into Scottish PFI, have proved well founded and squarely in the public interest.
Fawning press coverage of Human Rights Lawyers out for a spin serves to position the ICO within a supposed transparent international new normal, with oh-so-timely global free-speech recommendations for journalists, if not for campaigners, as long as nobody mentions how vexatious it all is while gobbling the post-show choccies.
The contradictions are as stark as the times we live in, because what Alan Dransfield’s continued use and abuse as a “vexatious” scapegoat at home does guarantee, is that when you or I go asking for verifiable facts about our health and safety in “the new normal”, we too can easily and quietly be told to fuck right off.
by Angel Garden
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11KBW, Alan Dransfield, Amazon News Media, ANM, Doughty Street Chambers, Elizabeth Denham, featured, Harini Iyengar, ICO, Information Commissioner's Office, Judge Moira MacMillan, Judge Nicholas Wikely
A brilliant article Angel which supports my allegations the ICO are a government gatekeeper and they are at best, failing their duty of care or at worst, being complicit with the Tory Party to pervert the course of justice,I suggest the latter. Transparency,accountability and security MUST be seen to be working and it certainly AIN’T seen to be working in Ms Denham’s office .
This article does not include the FACT that the ICO HQ is not fit for purpose because the H, Q Premises have been leaking Radon Gas for the last 3 years which would explain the failures of Ms Denham with her Vexatious BS.
Radon Gas will kill people who have been exposed for 3/4 years. Obviously the Radon Gas has affected the ICO Officials Cognitive Abilities.
I have now become the UK’s first person subjected to a carpet vexatious ban by the Upper Tribunal and the ICO acting in concert. On Dec 10th last year the UT Judge Wikely in his decision notice GIA/399 claim any FOIA request sent by Dransfield to the ICO could be thrown in the trash Bin.
I have now been charged by the ICO that I am a DELINQUENT CREDITOR. I do believe it is time for AMM to do a follow up this excellent story and in particular the RETIREMENT of the FTT Judge Alison McKenna. Retirement my ass, she was sacked for maladministration and corruption.Not only was she a FTT Judge , she was the FTT President aged 57 hence retirement was never on her agenda. She was on gardening leave for 13 months whilst a “FULL INQUIRY” was undertaken.
The Dransfield Vexatious Court precedent was designed by crooks to protect crooks and this can be verified by a simple ocular inspection of the ICO Decision Notices.
If ever we need the FOIA in the UK it is NOW, to protect the Citizens from the Tory Mafia. The Dransfield Vexatious Court Precedent has been used for EVERY Government Department.