FOI request on whereabouts of chief legal adviser "not vexatious"

A repeated Freedom of Information request for the whereabouts of a legal adviser was not vexatious, the First-Tier Tribunal (Information Rights) has found.

The case was brought by Tony Wise, who had asked where Lancashire Constabulary’s chief legal adviser had been on certain days in 2009, with the object of finding out whether she attended a meeting where he believed his complaint about the chief constable was discussed.

Wise maintained the legal adviser should not have attended this meeting.

He first applied for the information using a pseudonym on the Whatdotheyknow website, but realised that he could not appeal to the Information Commissioner without using his real name and so lodged the same FoI request again using it.

Lancashire Constabulary refused the first request, and then rejected the second as vexatious because it was identical.

The Information Commissioner rejected Wise’s appeal, relying on the constabulary’s evidence that meeting his request would create a significant burden of expense and distraction, that it amounted to harassment and was obsessive and lacked value.

The Tribunal found that the commissioner’s decision rested “heavily” on the police’s assertion that Wise’s complaints against the chief constable had already been investigated and found to be unsubstantiated.

But evidence presented to the tribunal showed the chief constable of Cheshire had in fact been appointed to conduct an independent review of the case.

“The Information Commissioner was not of course the competent body to form a view as to whether the constabulary or the appellant were correct in their assertions about the relevant procedure and the Information Commissioner’s acceptance of the constabulary’s evidence was based on his (not unreasonable) assumption that the correct procedures for the investigation of the appellant’s complaint had been followed,” the Tribunal said.

“The appellant has of course argued throughout this matter that the correct statutory procedures for the investigation of his complaint about the chief constable had not been followed, and the documentary evidence provided to the tribunal confirms that an inquiry under the terms of the statutory scheme has only recently commenced.

“This information post-dates the decision notice and fundamentally undermines the Information Commissioner’s conclusions as detailed above. The tribunal is now able to take account of it and finds that the Information Commissioner’s conclusions cannot stand in the light of this new information.”

The Tribunal ordered Lancashire Constabulary to comply within 35 days of the notice (dated 27 July) with s.1(1) of the FOIA 2000, by confirming or denying to Wise that it holds the information requested and either disclosing that information or informing him that it refuses to disclose it in reliance upon an exemption under the Act.

Wise told the Tribunal that he had already been informed that the chief legal adviser did not attend the meeting about his complaint, but that he did not believe what he had been told.

The Tribunal said it regretted that this was the case, but doubted that the FOIA regime was the means by which his doubts could be allayed. “The Tribunal expresses the hope that the ongoing independent investigation into his complaint will resolve the appellant’s concerns.”

Mark Smulian