BACKGROUND TO THE NEWS: OUR CORRESPONDENCE WITH THE INFORMATION COMMISSIONER AND THE 19 ‘CARNEGIE’ E-MAILS

The following is the correspondence relating to News From Crystal Palace’s Freedom of Information appeal to the Information Commissioner’s Office:

(Abbreviations: EIR Environmental Information regulations; FOIA Freedom of Information Act)

On December 3rd 2018 the ICO wrote:

Between 17 January 2017 and 4 September 2017 you submitted 14 separate requests for information to the Council. The time interval between most of the requests was not more than two months.

A request for information can be deemed manifestly unreasonable if it is likely to cause a disproportionate or unjustified level of disruption. Such disproportionate level of disruption could be caused by submitting frequent series of requests for information to a public authority in relation to a subject matter and consequently placing a significant strain on the public authority’s resources.

An applicant’s past pattern of behaviour is a relevant consideration in this regard. Evidence to suggest that an applicant will likely submit follow up requests/enquiries to a public authority’s response to a previous request by the applicant on a subject matter is a strong ground for concluding that the latest request from the applicant on the same subject is manifestly unreasonable.

Neither the EIR nor the FOIA is the appropriate mechanism to address dissatisfaction with a public authority’s decisions. It is clear in this case that you are dissatisfied with how the Council has handled the redevelopment of Carnegie Library in Herne Hill. While you may have legitimate reasons, the number and frequency of your requests to the Council regarding the issue is nonetheless placing a significant burden on the Council’s resources. Neither the EIR nor the FOIA was designed to be used in such a manner. Concerns in relation to the redevelopment of Carnegie Library should be addressed through the available complaint procedures.

In the circumstances of this case, I do not consider that there is a stronger public interest in the Council placing a significant burden on itself by complying with your latest request of 24 January. Legitimate concerns regarding the redevelopment can and should be addressed through the available complaint procedures.

You may request a decision notice if you would like to appeal my decision to the First-Tier Information Rights Tribunal.

________________________________________________________________________________

On December 4th News From Crystal Palace wrote back to the ICO:

Thank you for your email.

The sole reason I made 19 separate requests regarding the emails was that Lambeth had previously complained I had put more than one question on a request, even though those questions were related.

(You say that In one day in July 2017, I submitted six separate requests for information asking for the same information but for different timeframes. This was probably because of the above or the reason I submitted the separate 19 requests for emails).

As I said, they also supplied the first of the emails – why refuse the other 19?. In fairness, you don’t address the point.

I should add that my requests are made as a journalist writing a local news website newsfromcrystalpalace.wordpress.com and not as a user of the Carnegie library Herne Hill. There is huge concern about the library service across Lambeth including the future of the Upper Norwood library and the Carnegie Herne Hill. among others (the Crystal Palace / Upper Norwood area sits in, or on, the edge of five London boroughs including Lambeth.)

You also say: “Between 17 January 2017 and 4 September 2017 you submitted 14 separate requests for information to the Council. The time interval between most of the requests was not more than two months.”

My reaction to that are as follows:

1: Is there a limit on how many questions a person can make? These are relevant questions.

2: The questions I ask, as a journalist, are relevant and pertinent. Because of Lambeth council’s initial refusal to answer any questions on the Carnegie library my natural instinct was to ask what they were covering up – if anything.

3: The last-but-one set of (three) questions I asked Lambeth’s FOI team were all answered without recourse to an internal review. The latest set of nine questions  were all refused for what I will call a variety of ‘snowflake’ reasons.

I currently have one outstanding appeal in with the ICO which also relates to the Carnegie library, Herne Hill and will not require a follow-up question if answered.

I also have nine appeals for an internal review in with Lambeth on a variety of different subjects, all of which were hand-delivered on the same day (and one of their reasons for refusing to answer any of them). My reasons for hand-delivering them have been that I could never fill in the online form on the Lambeth council website.

I have a major concern that Lambeth will use your decision as a precedent to refuse all nine internal reviews, even though some of the answers would be just one or two lines. And with no follow-up questions (another reason given for their current refusal)  to the FOI team.

Does this mean I can never ask ANY more FOI questions of Lambeth on any subject at any time in the foreseeable future? Or ever again?

Please could you clarify what you think is a reasonable time frame? There are many Lambeth residents continually asking FOI questions, especially about Lambeth council’s highly controversial estate demolition / regeneration policies?

(For background, you need to be aware that my journalistic career has been on local newspapers across London. I’ve covered eight London boroughs. I have to call it as I see it. Lambeth are an extremely secretive council with no traditional committee system.)

Yours Sincerely

___________________________________________________________________________________________

(Also on December 4th 2018), to the ICO

Some additional thoughts:

Your / the ICO’s decision could mean that I am faced, as a journalist, with restraint of trade.

Please could you let me know if there are any previous ICO decisions which basically give a council or other authority a blanket reason to (potentially) refuse to answer any more questions (if I’ve read that right) regarding this, and if those questions were from a member of the public or from a journalist?

Please could you also ask your legal team what the legal position would be?

Many Thanks

__________________________________

December 5th 2018 (also to the ICO)

I have to say very, very strongly that if the ICO side with Lambeth councilI I will, as a journalist, be emasculated.

There is a huge back story as to why I make Freedom of Information requests to Lambeth council. Lambeth, as I said yesterday, does not have a traditional committee system. The council leader has publicly stated she does not believe in the committee system, so that’s that.

Within the ruling political group (there are six opposition councilors) dissent is not, and has not, been tolerated. The council will not meet any groups who do not share their own views 100 per cent. Tenants and residents groups have been disbanded by the council and replaced with groups full of “yes” men and “yes” women.

You will find a raft of stories about this not only on the news website I write and edit (newsfromcrystalpalace.wordpress.com) but also on the Brixton Buzz and SE1 News websites. The website I write is, and has been, highly critical of Lambeth but not of the four other boroughs covering Crystal Palace (one of which is Conservative-controlled, the other three being Labour-controlled.) I have also written some opinion pieces which, as I have previously told your colleagues, have been highly facetious about Lambeth. I have NEVER been rude to any FOI staff directly or personally although I have made comments about the Carnegie library Herne Hill being in a wetlands area (It’s not.)

Rightly or wrongly, I also strongly suspect that there has been party political interference with the FOI team at Lambeth. Since I made my two separate appeals to the ICO I put in three requests on the same day. All answered without any problem or need to request an internal review. That has since changed – nine requests, nine refusals.

I ask FOI questions because I have got totally fed up with getting no answer – or very few answers from the council’s press office. Emails have, on far too many occasions for it to be coincidental, been bounced back as ‘high probability of spam.’

Your decision as it stands would also give other councils across the country the precedent to refuse to answer FOI questions from a reporter on a local newspaper / local news website if they have already asked X number of questions over a given period. That is a danger to democracy.

I can’t give up. Too many people in Lambeth (I have just over 5,000 readers many of them from that borough) rely on me to ask pertinent, relevant questions of Lambeth council which they very clearly don’t want to answer – or see reported.

Finally please could I draw your attention to a recent report from the Local Government Ombudsman: Investigation into a complaint against London Borough of Lambeth (reference number: 17 018 747) 24 August 2018

Part of the report – paragraph 33 – states: “We note the Council introduced its Policy to address resourcing issues. However, that is no reason not to provide the statutory service.”

Lambeth have refused to answer some of my questions in the past because it would take too long. I don’t know if the Freedom of Information team at Lambeth council are providing a statutory service – or whether it is covered by the act which the Local Govermnment Ombudsman is quoting – but would just wish to make that point.

_____________________________________________________________________________________________

24 December 2018 (from the ICO to News From Crystal Palace)

Dear Mr Green

I write further to your emails of 4 December 2018 (at 10:45 & 13:56) and 5 December 2018.

You argue that since the Council had “supplied the first of the emails – why refuse the other 19?”

I understand that you had submitted the 19 requests further to the Council’s response of 27 December 2017 (to a previous request) which included the dates of the 19 emails you subsequently asked the Council to also disclose.

It was following that request for the 19 emails that the Council concluded that your request would impose too great a burden on its resources given the history of your contact with the Council which suggested you were likely to follow up a response with more requests for information. I explained in my previous letter that this is a legitimate ground for concluding that a request is manifestly unreasonable.

The fact that you submitted 19 requests is significant. However, it is not the only significant reason which led to the Council refusing to comply with the requests. There is a demonstrable pattern to suggest that you were unlikely to be satisfied with the information provided by the Council in response to your requests and that this would lead to more requests from you on the subject matter. This pattern of following up a response to requests for information with frequent series of requests for information is also a legitimate ground for concluding that a request is manifestly unreasonable.

The EIR is largely applicant-blind. Therefore, the Commissioner cannot take into consideration the fact that you are a journalist in determining whether your request will impose a significant burden on the Council. Clearly the fact you are pursuing a public interest issue cannot be ignored and I am mindful of that legitimate interest. Nevertheless, ultimately there is only so much the EIR can achieve with regards to your pursuit and consideration must be given to other applicants who may find that the Council is struggling to deal with their requests as a result of the burden imposed by the number and frequency of your requests.

Neither the FOIA nor the EIR has set a limit on how many requests an applicant can submit. However, both pieces of legislation are designed to protect public authorities by allowing them to refuse requests which are likely to cause a disproportionate or unjustified level of disruption (for example, by imposing too great a burden), irritation or distress.

Finally, each case is decided on its own merits. Nothing prevents you from submitting new requests to the Council in future. Clearly the Council also has to consider whether in the context and history of your previous requests, any new request is likely to cause disproportionate or unjustified level of disruption to service delivery

I trust that this now clarifies the basis for my decision.

I would be grateful if you could let me know whether you would like me to issue a decision notice or you are happy to withdraw your complaint.

I will assume you have withdrawn your complaint if I have not heard from you by Friday 4 January 2019.

Yours Sincerely

________________________________________________________________________________________________

December 27th 2018 to the ICO

Thank you for your email which I’ve been unable to read until today (Thursday).

You have clarified one important question for me which is: How many FOI requests a person can make.

I don’t wish to withdraw my complaint and am happy for you to issue a decision notice so it clarifies the position publicly.

I don’t accept I ask follow-up questions on every subject although I accept this may have been the case with requests involving the Carnegie library, Herne Hill. I would also say some answers prompt fresh questions.

Just before Christmas I heard back from Lambeth on eight separate requests I asked for an internal review on – all have been refused and I will be forwarding requests for an appeal in the near future.

Many Thanks

______________________________________________________________________________________________

3 January 2019 from the ICO

Dear Mr Green

Thank you for your message.

As requested, I will arrange for a decision notice to be issued upholding the Council’s application of regulation 12(4)(b) to your request for information.

______________________________________

8 March 2019 from the ICO

Dear Mr Green

You may have seen the Council’s email of 7 March 2019 together with the disclosures further to your information request.

The Council remains of the view that your request is manifestly unreasonable relating as it does to previous requests regarding the redevelopment of Carnegie Library.

Upon further reflection I asked the Council to consider whether it could disclose the emails you requested in the interests of transparency. The Council agreed to disclose the emails without prejudice to its view that the number and frequency of requests you have submitted in relation to the subject matter have placed a disproportionate burden on its time and resources.

The Council has released the emails with redactions further to the personal data exemption.

This concludes my investigation and the case is therefore now closed.

Yours Sincerely

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