If At First You Don’t Succeed, Become Bolshy?

Or truculent, antagonistic, persistent, even argumentative. Being assertive helps, being right is best! Especially when challenging the Information Commissioner (the First Respondent) and West Lancashire Borough Council (the Second Respondent) at the First Tier Tribunal.

Which is what Burscough resident and anti-flooding campaigner Gavin Rattray did in May this year. As Bernie Webster, the resident of Crabtree Lane referred to yesterday, fought flooding of his and his neighbours’ homes by practical means, Gavin Rattray sought a legal remedy.

In this instance his evidence, photographs and other, was proven without challenge to the First Tier Tribunal.

To cut a long story short, Risk Management Authorities as in LCC, WLBC and UU are responsible for managing flood risk locally, for the supply of water, and for waste water services. With the help of Rosie Cooper MP Mr Rattray sought information connected with a planning decision relating to a local property which had been denied to the public.

As the Tribunal states, The Council (WLBC), through Mr John Harrison, Director of Development and Regeneration, responded in a letter of 7 December 2017, addressed to Ms Cooper. He referred to a “protracted correspondence” between Mr Rattray and Council officers over a number of years regarding drainage matters and to Mr Rattray having issued requests for information under the freedom of information legislation and complaints under the Council’s formal complaints procedure.

“It is the Council’s view that Mr Rattray’s requests for information, be that directly with the Council or indirectly, regarding drainage matters in and around Burscough are vexatious and therefore the information is exempt from disclosure under section 14(1) of the (FOIA) Act.

By a letter of 2 January 2018 Mr Rattray complained to the First Respondent (‘the Commissioner’) about the way in which the Council had dealt with his request. The Commissioner proceeded to carry out an investigation, considering the written representations and supporting documents submitted by Mr Rattray and the Council. By a decision notice dated 19 September 2018 the Commissioner determined that the Council had correctly applied EIR reg 12(4)(b) and that the public interest favoured maintaining the exception.

Bad news! But by a notice of appeal dated 9 October 2018, Mr Rattray contended that the Commissioner’s decision was wrong. By her response dated 7 November 2018 the Commissioner resisted the appeal contending that her decision of 19 September 2018 was correct. In the same document, she noted that it was apparent from the contributions of Mr Rattray and the Council that they disagreed on matters of fact and that in the circumstances it might be necessary to add the Council as a party to the proceedings.

The Council’s response to the appeal, dated 4 January 2019, defended its reliance on reg 12(4)(b), and developed the arguments already made in response to Mr Rattray’s request. It repeated the broad complaint of frequent and overlapping requests and of “unreasonable persistence” on his part. It also charged him with using an “accusatory” tone.

Of particular note is the statement at paragraph 19 of the Judgement, that “In our view the effect of these provisions is clear. Reg 12(1)(b) places the burden firmly on the public authority relying on an exception to show two things: first, that the exception (here, that under sub-para (4)(b)) applies, and second, if (but only if) it does, that the public interest favours maintaining it. That the onus is on the public authority is evident from the wording of the legislation and confirmed by the authorities. The point is further reinforced by sub-para (2), which operates at both stages of the analysis”.

And, at paragraph 20 “We note with some consternation that our understanding of the statutory framework seems incompatible with the Commissioner’s written case. As we have recorded, she contends that the appeal should be dismissed on the footing that the public interest favours maintaining the exception. On our reading of reg 12, the public interest test does not arise at all unless and until the public authority shows that the exception is applicable. This divergence has caused us anxiously to examine our thinking afresh. Having done so, and with diffidence, we stand by it. We regret that we were not able to explore these matters with the parties face-to-face. The disadvantages of deciding disputes like this without an oral hearing have been commented upon at a higher level (we will come back to this later)”.

At one stage of the Judgement, in paragraph 32, it seems that “The Council [WLBC] also places reliance on an anonymous social media post dated 4 October 2018 by the West Lancashire Record entitled, “If At First You Don’t Succeed, Become Vexatious”. It is evident that the piece was composed by someone with knowledge of the request of 27 October 2017 and the subsequent response of the Council and adjudication of the Commissioner. It is deeply critical of the Council’s perceived failure to deal with the flooding problems in Burscough and its response to the request. It ends by ironically congratulating “the complainant” for the successful outcome conveyed in the Commissioner’s subsidiary finding that the Council was in breach of the freedom of information legislation by failing to respond within the statutory 20 working days period, adding, “you’ve proved that those bureaucrats ARE accountable!” Despite its title, however, the post does not advocate the presentation of further requests for information, vexatious or otherwise. If anything, its general tenor is that no good would come of doing so”. WLBC placing reliance on WLR? Fame indeed, we didn’t know they read it!

The end game. “The Commissioner asks us to dismiss the appeal on the ground that the public interest in maintaining the exception outweighs the public interest in disclosure. As already explained, we think that this ignores the prior question whether the exception is shown to be applicable. We answer that question in the negative”. And “The Council’s [WLBC] own case appeared to acknowledge that the specific request, in itself, could not be characterised as excessive and that it was the wider historical context which made it so. That is plainly right. Having examined the evidence carefully, we are not persuaded that the requests for information presented by Mr Rattray, viewed collectively, have been excessive”.

“We are troubled by the logic of the Council’s case, which it does not shrink from expressing in plain language, that the door must now be closed on any further request for information related to flooding risk in and around Burscough. That logic runs counter to the entire spirit of the freedom of information legislation. It seeks to deprive Mr Rattray and, by extension, other concerned individuals who might be seen as associated with him, apparently for ever, of an important constitutional right to seek information in order to hold a public body to account on a matter of obvious public significance…”.

Outcome “We do not suggest that any of these reasons is individually determinative of the appeal. But we are satisfied that, taken together, they lead irresistibly to the conclusion that reg 12(4)(b) was not correctly applied. It follows that the appeal must be allowed”. Game, set and match to Burscough and Gavin Rattray.

Read the whole case here https://www.bailii.org/uk/cases/UKFTT/GRC/2019/2018_0219.pdf

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