How the Information Tribunal has eroded our rights (IPCC v IC) and why Bull Connor is smiling in his grave.

Eleanor Roosevelt and United Nations Universal...

Eleanor Roosevelt and United Nations Universal Declaration of Human Rights in Spanish text. (Photo credit: Wikipedia)

One may wonder what Bull Connor, the epitome of the racist resistance to the American civil rights movement, has to do with an Information Tribunal ruling.  What the ruling represents is a clear echo of the ideology and approach to individual civil rights that permeated the resistance to equal rights in America. The answer will raise the alarm of all UK residents because it means their rights are under threat.

In the United Kingdom, we are in a period of post-legislative scrutiny of the Freedom of Information Act.  The government is reviewing the legislation after 7 years to see if it is operating as intended. Following the scrutiny, Committee may propose changes to the legislation. Two areas that some authorities and organisations have expressed concerns over are cost limits and vexatious requests.  The argument is that trivial requests and vexatious requests waste time and resources.  The argument is that the legislation needs to be changed to cut or drop them.  In particular, several people gave written or oral evidence of requests that appeared vexatious or wasted time.

In this fervid atmosphere, the Information Tribunal made a ruling that brought both of these points together.  They ruled that two exemptions could be joined to declare a request vexatious.  The two are s.14 (vexatious) and this could be shown by a request that would be refused for exceeding the fees limit (s.12 exemption) fees limit exemption. If it cost too much to respond this could be the basis for characterising the request as vexatious.  The ruling can be found here:

A good summary of the technical side of the case can be found here at the Panopticonblog.

How can the free exercise of our rights lead to them being removed?

The key point for all UK citizens is the following paragraph.

19. Abuse of the right to information under s.1 of FOIA is the most dangerous enemy of the continuing exercise of that right for legitimate purposes. It damages FOIA and the vital rights that it enacted in the public perception. In our view, the ICO and the Tribunal should have no hesitation in upholding public authorities which invoke s.14(1) in answer to grossly excessive or ill – intentioned requests and should not feel bound to do so only where a sufficient number of tests on a checklist are satisfied.

As an American, I was struck by the first sentence. In the South, after the American Civil War, black men and women were denied the vote because of segregationist (racist) policies.  One particular reason for denying black Americans after the American Civil War their civil rights, such as the right to vote was the idea that blacks would be “irresponsible” with their rights.  They would “abuse” their rights. Before the Civil War, they were denied any rights under the Bill of Rights in Dredd Scott v Sandford.

To keep the black American from exercising their rights, opponents such as Bull Connor used violence, intimidation, and laws.  The Civil Rights Act fulfilled America’s promise and brought equality of rights.

We, the people possessing and using those rights, are being told in this ruling that if we exercise our rights in ways that the powerful find irritating they will be taken away from us.  If we use our rights in ways that the government does not like, they will be taken away.

If this was Mugabe’s Zimbabwe or Putin’s Russia, we could believe such statements would be made.  What is astounding is that the gravest threat to our rights in the United Kingdom is not a tyrannical government.  It is not a surveillance state of unchecked power and scope. Instead, the greatest threat to our rights is citizens exercising those rights.

These rights are enshrined in the Human Rights Act, in the Universal Declaration of Human Rights, and they are rights that go back to the Magna Carta. Yet, if you exercise them in ways that displease the powerful, they will be taken away.

As a resident, and a foreigner, it frightens me when those in power can say that you “the citizen” are endangering your rights by exercising them in a way that annoys those in power. When an unelected official nominally responsible for upholding legal rights makes judgements like this, one wonders whether any rights can be protected.  They can be protected so long as the powerful are not irritated.

If judges or tribunal are not going to stand up for your rights, who will?  Who will protect your right to free expression? Your right to privacy, your right to be free from torture? In the United Kingdom there is no bill of rights enshrined to protect the person.  If you use your rights in ways that annoy the powerful, then they will be taken away.

Will your right to vote be taken away?  Are you “abusing” your right to vote if it inconveniences those in power?  The Tribunal’s approach to those who wanted to exercise their democratic rights has the same chilling effect even if it is slightly more “civilised”.

What is to be done?

I urge all UK residents to exercise their civil rights and do the following.

  1. Submit a freedom of information request to their local authority or the central government. Use whatdotheyknow.com
  2. Write to their MP, using this link, to ask them to defend citizen’s civic rights and defend FOIA

Exercise your rights now before they are taken away!

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About lawrence serewicz

An American living and working in the UK trying to understand the American idea and explain it to others. The views in this blog are my own for better or worse.
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2 Responses to How the Information Tribunal has eroded our rights (IPCC v IC) and why Bull Connor is smiling in his grave.

  1. Whilst I’d certainly not argue with any argument that people should support SaveFOI, I think comparing this decision to segregation is going a bit far. My own view – and I’ve covered this on the FOI Man blog – is that whilst I wouldn’t call for more restriction of FOI (and that’s what the Save FOI campaign is about for me), I completely defend the right of public authorities to use its existing provisions to manage the process. I don’t think the Tribunal are curbing anyone’s civic rights by upholding a sensible interpretation of the Act. This decision merely reflects the obvious truth – that some people do misuse rights (in any field) and public authorities must have the tools to defend themselves in those circumstances.

    • lawrence serewicz says:

      Paul,
      Thanks for the comment and the retweet. I hope that my post, as previously structured, did not suggest that the Tribunal were segregationists. This was not my intent. My focus is on individual rights. I think the Tribunal overstepped, badly, in their decision. I was amazed that the IPCC was not required to use s.16 nor was the request seen as in line with the public interest. The request, if fulfilled, would have published the reports. Yet, this is now seen as vexatious. Where is the criticism of the organisation for not using s.16? Where is the criticism of the organisation for looking at disclosing some of the material? Instead, it is the applicant’s fault. The one with the least power is to blame.

      Why are we told the applicant made, on average, a request a month, yet, we are not told the IPCC response rate? Why is one request a month for 2 years seen as fitting a vexatious category by the Tribunal? How? One a month is hardly showing something unreasonable given that it takes a month to get a response according to the 20 working day deadline. If the organisation is missing the deadline, then it would not be unreasonable to make follow up requests. Moreover, why has the organisation not taken steps to publish the information if it is not covered by an exemption? They could respond and charge for the photocopies, which may reduce the ardor, but it was an outright refusal to push it to the Tribunal.

      What is particuarly concerning is the persistent attitude that there are “vexatious” requests and “time wasting” requests. Yet, where is the responsiblity for the organisation, which has all the power in this relationship? They could have worked withe applicant to help them. As for time wasting requests, such as zombie invasion resistance plans, these can be knocked back with a quick response citing s.1(1) information not held. Such a response should take about 5 minutes. Why are we not asking the organisations to demonstrate how they cannot answer such a request in 5 minutes? Has tha really taken that much time that the press and critics have assigned it?

      I am concenred that the organisations who have the power, the power of silence, are able to control the dialogue and hold the power over the individual. The Act was designed to rebalance the relationship between the individual and the state. Yet, now that it seems to demand something from the state, that it publish information, it can be resisted simply because it “might” cost the state money. Yet, the state could arrange its records to improve the publication. For example, it could publish the reports and charge for them. Yet, that idea is not entertained. Instead, the request is refused as vexatious without recourse to s.16. In effect, the holy grail has been achieved. Requests can be refused out of hand.

      I do not see this as helping individual rights. I do not see this as supporting the overall approach to freedom of information or transparency. I see this as a backwards step. The state will tell you what you may or may not have. If they consider you awkward in anyway, your request will be considered vexatious. Instead of a last resort, this will become a stick to beat applicants who are “problem customers”, “serial complainers”, and the “usual suspects”. Instead of looking for the underlying issues and working with the applicant, the Tribunal has encouraged organisations to respond with vexatious.

      The tribunal has set a precedent and I would predict that in the coming months and years vexatious will be used more and more. Fewer applicants will challenge it, because they will not fully understand their information rights. Less information will be disclosed. Organisations will be less accountable because they now have the get out card saying “It costs too much time” and therefore is “vexatious”.

      I would be interested in the examples from other rights that are abused by exercising them. The debate over the “excesses” of the HRA seem to suggest this, yet the issue is more the state’s reaction to the rights rather than the individual trying to use them.

      Organisations have a number of tools in their arsenal when dealing with requests. Yet, the ethos of the Act is not to find ways to avoid disclosing. It is to disclose information *unless* an exemption applies. In any case, the organisation can defend themselves against a request, if they understand bureaucratic politics and have the bureaucratic skin to deal with the issue. Moreover, the organisation already has the power and the advantage because most individuals do not have the same resources to manage requests going month after month and follow through appeals and ICO investigations. Moreover, the issue was not about the right of public authoriies to manage the process. In many ways, the organisation has not managed the process (or its records for that matter) and thus has to rely upon vexatious to avoid the request.

      My apologies if I have written anything that detracts from the ongoing work of you and the others. I have edited the post to remove the reference and “tone down” any language that would suggest the Tribunal as segregationists. I am passionate about individual rights because I am used to having a Bill of Rights and I know what it means when the state can refuse those rights. I am worried by the Tribunal making such a statement because I am not convinced that exercising a right can ever be considered a reason to curb it. The tribunal have not demonstrated how the request is an abuse nor has the argument. Instead, they have bowed to institutional pressure (not the same as public pressure). Thus, the people who are on the margin remain on the margin because they are asking questions and thanks to the Tribunal organisations can avoid them. I do not see this as a democratic good. I see this as a step backwards for FOIA and individual rights in the UK.

      Perhaps I expected more from the Tribunal.

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