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Emailed to the Department for Work and Pensions today:
Thank you for your response to my Freedom of Information request. I am writing to request an internal review, on the grounds that your refusal of my request, on the grounds that it is “vexatious”, is unreasonable. I believe the decision may also be politically motivated.
Your letter states that your refusal is entirely based on a single line – not in my FOI request itself, but on my political blog website – at the end of an entry in which I gave details of the request, the reasons it is necessary, and the information required. That line was “I strongly urge you to do the same. There is strength in numbers”.
Your letter states: “With this as the stated aim of the exercise I believe your request is designed to harass DWP in the belief that encouraging others to repeat a request which they know has already been raised will affect the outcome of that request.” Although you do not make clear what “this” is, the statement must be considered irrelevant. The stated aim of the exercise is the release of statistical information about people who have died, during 2012, while going through a DWP policy process, namely the Atos-led work capability assessment system for Employment and Support Allowance, while appealing against it, or after having had the benefit refused. This fact is made abundantly clear in the main body of the article and it is unreasonable to suggest that an afterthought on the last line changes the entire tone of the piece.
Guidance from the Information Commissioner’s Office, ‘Dealing with vexatious requests’ supports my position. It may be found at http://www.ico.org.uk/~/media/documents/library/Freedom_of_Information/Detailed_specialist_guides/dealing-with-vexatious-requests.ashx
Paragraph 86 states that, “if a public authority has reason to believe that several different requesters are acting in concert as part of a campaign to disrupt the organisation by virtue of the sheer weight of FOIA requests being submitted, then it may take this into account when determining whether any of those requests are vexatious”. It is unlikely that the ICO will consider an afterthought comment at the end of a blog post to be, in any way, “acting in concert as part of a campaign to disrupt”. A concerted campaign would, in my opinion, require me to be contacting other individuals and telling them what to do and when to do it, in order to cause the kind of disruption the guidance describes.
Skipping ahead to Paragraph 92, this states that “it is important to bear in mind that sometimes a large number of individuals will independently ask for information on the same subject because an issue is of media or local interest. Public authorities should therefore ensure that they have ruled this explanation out before arriving at the conclusion that the requesters are acting in concert or as part of a campaign”. You have no proof that I have launched a campaign against the DWP. Even if others making the same request have mentioned my name or the blog article, this does not constitute a campaign – it indicates that the issue is of interest to the public. They would not be asking if they did not want the information. It is the information that is important – not any unjustified claim by the DWP that it is being harassed.
Since you have made that claim, let’s look at Paragraph 87, which supplies examples of evidence an authority might cite in support of its case that a request is vexatious. The example that “requests are identical or similar” can be ruled out because this is likely in a case that has come to public attention at a particular time. Also to be ruled out is the example stating there is “an unusual pattern of requests, for example a large number submitted within a relatively short time” – this is to be expected when a matter of public interest comes to public attention.
The question of whether you have received email correspondence in which other requesters have been copied in or mentioned is relevant, though. Have you received such correspondence? I have not, and as the suggested instigator of your imagined campaign, I think I would need to be a part of such communication!
The question of whether a group’s website makes an explicit reference to a campaign is also relevant. My website is my own, and does not belong to a group but, for the sake of fairness, let’s ignore that in your favour. Does my comment, as quoted by you, make an explicit reference to a campaign of harassment against the authority? Of course it does not. I’m sure the Information Commissioner would laugh at such an inference.
Paragraph 89 states that “If the available evidence suggests that the requests are genuinely directed at gathering information about an underlying issue (in this case, the number of deaths occurring in relation to a DWP policy process), then the authority will only be able to apply section 14(1) where it can show that the aggregated impact of dealing with the requests would cause a disproportionate and unjustified level of disruption, irritation or distress. You cannot prove this.
The DWP habitually collects the information I requested, and has already turned the data from 2011 into an ‘ad hoc’ press release without claiming that it caused a disproportionate or unjustified level of disruption, irritation or distress.
At a meeting of the Commons Work and Pensions Committee on July 10, David Frazer, your Director of Information, Governance and Security Directorate, said: “If Ministers themselves want to use information publicly, and it’s not readily available from a first-release publication or a tabulation tool, then we also produce what’s known as an ‘ad hoc’ statistical release… It’ll have the key numbers and advice on how to interpret.”
We know that ‘Incapacity Benefits: Deaths of recipients (9 July 2012)’ was an ‘ad hoc’ release – so Mr Frazer was saying that the information it contained is gathered as a matter of course. It should, therefore, be easy to gather it together and release it into the public domain.
Mr Frazer said: “We put out regular publications that say [for example]‘this is the latest number of people on working-age benefits; here’s a summary of the key trends and matters around that.” He went on to say this was supported by background information and charts created by dedicated statisticians and analysts. In that context, it stretches credibility for the DWP to claim it does not keep statistics on the results of ESA work capability assessments, including – especially – the number of people who have died. This government department has an army of experts compiling data on its activities every day.
In your refusal letter, you argued that “Compliance with multiple repetitions of a known request also causes a burden, both in terms of costs and diverting staff away from other work, due to the significant time required to administer these requests.”
However, we know from the evidence of Mr Frazer that this is not the case. He said, on the record, that the DWP makes its responses to FOI requests publicly available on its website: “Besides sending them to the person that’s made the FOI request, they’re readily available to everybody else”. Clearly, then, if someone sends in an FOI request for identical information to that requested by someone else, they can be directed to the relevant webpage with a minimum of effort from DWP staff. The time required is tiny, not “significant” – therefore any claim that a request is “vexatious” on such grounds is obstruction on the part of the authority – abuse of the legislation.
And consider this: If the purpose of s.14 is to protect the resources of a public authority from being squandered on disproportionate use of FOIA, the fact that multiple requests are being made, by different people, means that this use of your resources is NOT disproportionate but would, in fact, rectify an omission in the Department’s statistical coverage. This is information that should be in the public domain and it is remiss of the DWP to withhold it. Some might say it constitutes dereliction of duty.
So you see, the aggregated impact of dealing with the requests, according to the DWP’s own Director of Information, would not cause a disproportionate and unjustified level of disruption, irritation or distress. It may be handled as a matter of course and, in any case, the information should be publicised as it is a matter of public interest.
You may wish to claim that public interest arguments are irrelevant as ICO guidance states there is no public interest test when considering whether a request is vexatious. This would be a misreading of the rules. Public interest is relevant when considering the context of the request, and the guidance states that a public authority may take this aspect into account. The subject of my request is clearly a matter of substantial public interest, acknowledged as such by the DWP, otherwise the ‘ad hoc’ statistical release of 2012 would not have been published.
I draw your attention also to paragraph 27 of the guidance. The information about an “accusatory tone” is irrelevant as my tone, although formal, may not be considered aggressive in any way. But the paragraph goes on to state that if the “request has a serious purpose and raises a matter of substantial public interest, then it will be more difficult to argue a case that the request is vexatious“. As you know, my request was for very specific information that has been withheld from the public (in my opinion) unreasonably, and it is in the public interest to have that information published.
Finally, taking all of the above into account, it seems likely that there is a political motivation behind the refusal of my request. Paragraph 13 of the ICO’s guidance states explicitly that “Section 14(1) is concerned with the nature of the request rather than the consequences of releasing the requested information,” but in his evidence to the Work and Pensions Committee on June 10 – in relation to this very request – Mr Frazer revealed that it is likely my request was refused by a Minister, for political reasons. He said: “In the first instance we have officials who will look at what the request is; they will look at whether it would produce a disproportionate cost for what it is – they will make that judgement, but I believe it will come down to Ministers to make that call.”
With regard to this alone, it is clear that the DWP is abusing the ‘vexatious’ exemption. It is not intended to shield the government from politically challenging fallout.
So you see, there are no possible grounds for refusing my request. Please carry out an internal review – with alacrity. There should be no difficulty with this as John Shield, your director of communications, has already promised the Commons Work and Pensions committee that he would check this request, to make sure the response is “copper-bottomed, 100 per cent accurate”. He will find that it is not.
Afterwards, you must immediately release the information I requested. My FOI request was made after I learned that a previous request, made in November last year, had been refused. The DWP delayed responding for more than seven months before notifying the requester that it had no intention of releasing the details he had requested. It is now eight months since that original request was made. According to the ‘ad hoc’ statistical release last year, this means an average of 2,482 people are likely to have died while going through the process in the intervening time – but those figures are out of date. How many deaths have really taken place?
If you persist with your negative decision, I will have to complain to the Information Commissioner’s Office for a ruling.