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ICO. Upholding information rights Wycliffe House, Water Lane, Wi
lmslow, Cheshire SK9 SAF Tel. 0303 123 1113 Fax. 016?5 524 510 www.
ico.org.uk Information Commissioner's Office
Mr Jonathan Bishop C/o Mr Mark Beech Crocels Ty Morgannwg PO Box
674 Swansea SAl 9NN
24 June 2015
Dear Mr Bishop/Mr Beech
Freedom of Information Act 2000 (FOIA) Cardiff Metropolitan
University Case Ref No: FS50566266
Please find enclosed a decision notice relating to your
complaint about a request for information that you submitted to
Cardiff Metropolitan University.
Your complaint has been considered by the Commissioner and the
decision notice sets out the reasons for the decision. If you
disagree with the decision notice, you have the right to appeal to
the First-tier Tribunal (Information Rights).
The Commissioner will publish this decision on the ICO website,
but will remove all names and addresses of complainants. If the
public authority also chooses to reproduce this decision notice,
then the Commissioner expects similar steps to be ta ken.
I hope the above information is helpful.
Yours sincerely
~ .~j ,~ Joanne Edwards Senior Case Officer
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Reference: FS50566266
Freedom of Information Act 2000 (FOIA) Decision notice
Date:
Public Authority: Address:
Complainant: Address:
24 June 2015
Cardiff Metropolitan University Llandaff Campus Western Avenue
Cardiff CFS 2YB
Mr Jonathan Bishop Crocels Ty Morgannwg PO Box 674 Swansea SA1
9NN
Decision (including any steps ordered)
ICO. lnformal1on Commissloner's Office
1. The complainant requested copies of Disabled Students
Allowance ('OSA') audits carried out from 2009 to 2014. Cardiff
Metropolitan University ('the University') initially stated that it
did not hold the information requested. The University's internai
review reconsidered the request in light of further comments made
by the complainant. The University's internai review response
confirmed that it held the information requested but it considered
it to be exempt under section 43 of the FOIA. The University also
stated that it was refusing the request under section 14 of the
FOIA as it considered it to be vexatious. During the course of the
Commissioner's investigation, the University withdrew reliance on
section 43 of the FOIA. The Commissioner's decision is that the
University correctly applied section 14 to the request. He does not
require any steps to be taken.
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Reference: FS50566266 ICO. Information Commissloner's Office
Requestandresponse
2. On 30 October 2014, the complainant wrote to the University
and requested information in the following terms:
"I would be grateful if you could provide me with copies of the
DSA audits that are carried out each year for the period of 2009 to
present".
3. Following clarification that the acronym "DSA" related to
"Disabled Students Allowance", the University responded on 21
November 2014. It stated that it did not carry out DSA audits as
there was not requirement to do so.
4. On 21 November 2014 the complainant requested an internai
review of the University's handling of his request. He also
provided further clarification in relation to the information he
was seeking access to.
5. The University provided the outcome of its internai review on
19 December 2014. It explained that based on the complainant's
comments in his internai review request it appeared to have
misinterpreted the original request. The University advised that
the information being sought appeared to be the annual audit of its
Assessment Centre, which is undertaken against a quality assurance
framework (QAF) by the accreditation body DSA-QAG. The University
advised that, if this was the information being sought, it held the
information but it considered it to be exempt under section 43 of
the FOIA. The University also stated that, taking into account
previous requests the complainant had made, it also considered
section 14 of the FOIA to apply as the request was vexatious.
Scope of the case
6. The complainant contacted the Commissioner on 24 December
2014 to complain about the way his request for information had been
handled.
7. During the course of the Commissioner's investigation the
University withdrew reliance on section 43 of the FOIA. In light of
this, the scope of the Commissioner's investigation is to determine
whether the University correctly applied section 14 of the FOIA to
the request of 30 October 2014.
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Reference: FS50566266 ICO. Information Commissioner's Office
Reasons for decision
Section 14 - Vexatious requests
8. Section 14(1) of FOIA states that section 1(1) does not
oblige a public authority to comply with a request for information
if the request is vexatious. There is no public interest test.
9. The term 'vexatious' is not defined in the legislation. In
Information Commissioner vs Devon County Council & Dransfield
1, the Upper Tribunal took the view that the ordinary dictionary
definition of the word vexatious is only of limited use, because
the question of whether a request is vexatious ultimately depends
upon the circumstances surrounding that request. The Tribunal
concluded that 'vexatious' cou Id be defined as the " .. .
manifestly unjustified, inappropriate or improper use of a formai
procedure" (paragraph 27). The decision clearly establishes that
the concepts of 'proportionality' and 'justification' are central
to any consideration of whether a request is vexatious.
10. In the Dransfield case, the Upper Tribunal also found it
instructive to assess the question of whether a request is truly
vexatious by considering four broad issues: (1) the burden imposed
by the request (on the public and its staff); (2) the motive of the
requester; (3) the value or serious purpose of the request; and (
4) any harassment or distress of and to staff. The Upper Tribunal
did, however, also caution that these considerations were not meant
to be exhaustive. Rather, it stressed the
"importance of adopting a holistic and broad approach to the
determination of whether a request is vexatious or not, emphasising
the attributes of manifest unreasonableness, irresponsibility and,
especially where there is a previous course of dealings, the lack
of proportionality that typically characterise vexatious requests"
(paragraph 45).
11. The Commissioner has identified a number of "indicators"
which may be useful in identifying vexatious requests. These are
set out in his published guidance on vexatious requests2 . The fact
that a request
1 UKUT 440 (AAC) (28 January 2013) 2 https ://ico.org
.uk/media/for-organisations/documents/1198/dealing-with-vexatious-requests.
pdf
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Reference: FS50566266 ICO. Information Commissioner's Office
contains one or more of these indicators will not necessarily
mean that it must be vexatious. Ali the circumstances of a case
will need to be considered in reaching a judgement as to whether a
request is vexatious.
12. The Commissioner has therefore considered whether the
request is likely to cause a disproportionate or unjustified level
of disruption, irritation or distress in relation to the serious
purpose and value of the request.
The University's position
13. The University stated that since the introduction of the
FOIA, this is the first time that it has relied on section 14 to
refuse a request as it endeavours to assist those submitting
requests as much as possible . it considers the request which is
the subject of this notice to relate to a "dispute" between itself
and the complainant regarding its request to have access to his
medical records and his subsequent removal from studies at the
University. The University contends that the dispute has been
resolved conclusively through the courts and the Office of the
Independent Adjudicator for Higher Education (OIA). Further
background on the dispute is contained within the University's
representations below.
14. The University is relying on a number of indicators in
support of its view that the request in this case is vexatious and
its representations are detailed below.
Unreasonable persistence
15. The University provided detailed representations to support
its view that the complainant is attempting to reopen issues which
have already been comprehensively addressed. He first raised a
complaint in August 2011 about the University's Disability Services
Manager ('DSM'). The complaint was investigated as a stage 1
complaint under the University's complaint handling procedures and
a response was issued in October 2011 which did not uphold the
complaint.
16. Following a period where the complainant suspended his
studies, he requested re-enrolment in May 2013. The complainant
submitted a further complaint in May 2013 relating to the
University's request to access his medical records prior to
re-enrolment and that it had failed to carry out an Annual
Monitoring Report . The outcome of this complaint was that it was
reasonable for the University to seek access to his medical
records.
17. A final notice was issued to the complainant as king him to
provide access to his medical records within 21 days. The
complainant did not provide the relevant consent and the matter was
referred to the
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Reference: FS50566266 ICO. Information Commlssioner's Office
University's Research Degrees Committee (RDC). The RDC approved
the complainant's withdrawal from the study programme. The
complainant lodged an appeal against the decision of the RDC and
the matter was considered by the University's Vice Chancellors
board in accordance with its procedures. The outcome of the appeal
was given in May 2014 and it dismissed the appeal.
18. In October 2013 the complainant raised three separate
complaints against the University alleging that the School of
Management had withdrawn him from studies without consent. The
University completed its internai procedures on these matters on 8
May 2014 and issued a Completion of Procedures ('COP') letter.
19. In March 2014, the complainant requested a COP letter in
relation to his complaint dating back to 2011 as part of a county
court claim he was making against the local education authority.
The University issue a COP letter on 28 March 2014, stating that as
the complaint had not been pursued within the relevant timescales
(10 working days), it would not be considered further. Following
receipt of the COP letter the complainant submitted a complaint to
the OIA for external review. The primary focus of the review
undertaken by the OIA was to consider whether the University's
decision that the complainant was out of time to progress to stage
2 of its complaint procedures was reasonable. The OIA did not
consider the substantive matters raised in the stage 1 complaint in
2011. The OIA issued its decision that the complaint was "not
justified" on 20 May 2014. The complainant appealed against the
decision of the OIA who reviewed and re-confirmed its position on
24 June 2014 that the complaint was "not justified". He also
referred to previous complaints against the University that he had
not yet submitted to the OIA for review.
20. In March 2014 the complainant added the University as a
second defendant to his county court claim on the grounds that the
University had discriminated against him. The county court issued
its judgment on 9 July 2014. The judgment was that the action
brought by the complainant was "totally without merit" and awarded
costs to the University and the local authority (the defendants).
The complainant attempted to appeal against the court order and
also submitted complaints to the court which were rejected. In a
letter which the Civil Judge issue in August 2014 he warned the
complainant about his criticism of the district judge and stated
that no further correspondence would be entered into with him
either on the case in question or other claims brought by the
complainant .
21. In November and December 2014 the University received
correspondence from third parties on behalf of the complainant
relating to his enrolment with the University and his complaint
about the DSM.
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Reference: FS50566266 ICO. Information Commissioners Office
The University responded stating that it considered the matter
to be closed and would not enter into any further
correspondence.
22. The University contends that all actions it has taken in
relation to the dispute with the complainant have been successfully
defended. It is of the view that the purpose behind making requests
for information is to re-open matters conclusively dealt with
through independent scrutiny and also to damage the University's
reputation. The University's position is that the complainant has
attempted to re-open his complaints through the OIA and the courts,
both of which have upheld its decisions.
Frequent or overlapping requests
23. The University contends that the complainant has submitted a
high number of requests, both freedom of information requests and
requests for his own persona! data (under section 7 of the DPA).
The University indicated that it was difficult to provide an exact
number of the requests received due to the number of supplementary
questions and requests that the complainant submitted. However, it
estimates a total of 21 from September 2013 to January 2015. The
University provided the Commissioner with brief details of the
requests it had received, and its response to the requests.
24. In addition to requests for information, the complainant has
also made several complaints against the University, as detailed
below:
August 2011 - first complaint alleging discrimination by DSM
May 2013 - second complaint of discrimination by the University
in requesting access to his medical records, alleging that this was
down to a recommendation made by the DSM.
September 2013 - Prohibited Conduct Questionnaire alleging a
breach of the Equalities Act 2010 alleging disability
discrimination as a result of withdrawal from his studies.
October 2013 - three separate complaint against individual
members of University staff alleging that they had withdrawn the
complainant without his consent (overlapping with second
complaint). April 2014 - sixth complaint alleging discrimination by
the Dean of Students as a result of the withdrawal from his
studies.
May 2014 - second Prohibited Conduct Questionnaire stating that
outcome of his second, third, fourth and fifth complaints (which
were not upheld).
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Reference: FS50566266 ICO. Information Commlssioner's Office
June 2014 - seventh complaint alleging that the University had
processed his persona! data unfairly in relating to his earlier
complaints.
25. The University argues that it is clear from the outset that
the requests for information are all related to the complainant's
complaints against it in requesting access to his medical records
and his subsequent removal from the course he was studying. The
requests started in September 2013 with a request for the number of
students who had been asked to provide their medical records to the
University's Disability Assessment Centre. Following the decision
of the court which did not uphold the complaint's action, he
started to submit requests about legal fees and complaints.
Following the disclosure of information relating to spend on legal
fees, the complainant passed the information to the media who
printed an article stating that the complainant speculated there
was a link between an increase in legal costs and complaint
numbers. The University was asked for comment on the article and
confirmed that there was no correlation to the level of legal fees
and complaint numbers. The request which is the subject of this
notice has now moved back to the issue of the Disability Assessment
Centre in terms of provision of OSA assessments and associated
audits carried out by DSA-QAG.
26. The University contends that, up until it applied section 14
to the request of 30 October 2014 it has attempted to help the
complainant with his information requests as much as possible.
Persona! grudges and unfounded accusations
27. The University confirmed that the persona! grudge it
considers applicable in this case is directed primarily at its DSM.
However, there have been occasions where the complainant has also
targeted the DSM's manager, the Dean of Student Services. From the
beginning the University stated that complainant focussed his
issues with the University primarily on its DSM. In August 2011 he
alleged that the DSM was "abusing her power" and he wished to
disengage with its Disability Service as a result. The complaint
was not upheld but the complainant was advised that he could
disengage from the Disability Service at the university and liaise
directly with the Local Education Authority.
28. The University provided the Commissioner with evidence that
the complainant had posted a number of articles online on various
websites and internet sites, including his own, about the DSM. The
University advised that the complainant also sent correspondence to
the home address of the DSM. As a result of these actions, South
Wales Police issued an information notice informing the complainant
that any continued such behaviour could result in arrest and
prosecution. As a result of the complainant's behaviour following
the information notice,
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Reference: FS50566266 ICO. In formation Commisstoner's
Office
further action was ta ken in court to protect the DSM from
further harassment. A restraining order was issued on 4 October
2013 "until further order". The restraining order prohibited the
complainant from contacting the DSM, posting articles or
information about her, maintaining articles or encouraging third
parties to do the same.
29. In October 2013 an email from the complainant about the DSM
was brought to her attention by a colleague of the complainant. The
University contends that the content of the email and the language
used clearly demonstrate, more than any other document or evidence
it has to support its decision, the complainant's true feelings and
persona! grudge towards her. Solicitors acting on behalf of the DSM
wrote to the complainant about the email in question. The response
from the complainant indicated that he considered himself to be an
"Internet trolling expert" and as such understood the law relating
to such matters better than most. The University considers that the
complainant's defence of his behaviour in the response does not
justify the offensive language that he used. It also considers that
his attempts to redefine derogatory terms and claim that his use of
them was due to the DSM being a politically active figure at the
time reinforces its assertion that the complainant will use
irrelevant matters to shore up his unsuccessful complaints against
the University. A further civil injunction was issued in June 2014
whereby the court ordered that the complainant was prohibited from
writing, creating, posting and/or publishing any articles relating
to the DSM in her professional capacity or otherwise.
30. The University referred to other comments, statements and
allegations made by the complainant about the DSM in various
complaints and correspondence he had submitted about his withdrawal
from the degree course, and his view that the DSM is the primary
reason for it. The University considers that the persistent
targeting of the DSM and the language used by the complainant about
her demonstrates he has a clear goal to focus on her and damage her
reputation.
31. The University also referred to unfounded accusations made
by the complainant against its Dean of Students. The University is
of the view that the allegations relate to the fact that he is the
line manager of the DSM. This includes allegations that the Dean
had unlawfully published an article during purdah.
32. The University also referred to a series of inaccurate
articles relating to its provisions of disability support that the
complainant published on a website he owns. The University took
legal action in December 2013 in order to have the articles
corrected as it considered them to contain defamatory statements.
Whilst the complainant did not agree with the concerns raised by
the University about the articles, he agreed to remove them from
his website.
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Reference: FS50566266 ICO. Information Commlssloner's Office
Deliberate intention to cause annoyance
33. The University contends that during its dealings with the
complainant he has demonstrated a proven history of using his own
website and others to misrepresent it.
34. As referred to earlier in this notice in paragraph 35
following disclosure of information about legal costs provided to
the applicant in response to a freedom of information request, he
contacted the media. In his email to the media, the complainant
speculated that there may be a link between the number of
complaints against the University and an increase in its legal
costs. This speculation was referred to in the subsequent media
article which was published. The University believes the
complainant misrepresented the information that was disclosed in
response to his request because whilst its legal costs did
increase, it was not attributable to an increase in the number of
complaints, which had in fact decreased in the period in question.
The University considers this demonstrates the complainant has a
tendency to present one fact and follow it up with an inaccurate
one. It argues that this proves the complainant is motivated with a
desire to damage the University, regardless of the truth.
35. In addition, the University referred to the email which the
complainant sent to a colleague in October 2013 as referred to in
paragraph 32 of this notice. As well as containing comments and
opinions about the DSM and the Police, in the email the complainant
stated that he would use his "media empire" against the University.
The University considers that this evidences that the complainant's
motivation is not in the public interest but rather his desire to
damage its reputation in apparent revenge for withdrawing him from
his studies. A decision, which the University pointed out, which
was found to be appropriate by the OIA.
Abusive or aggressive language
36. In its representations under this indicator the University
referred to the email which the complainant sent to a colleague
which contain derogatory comments about the DSM as referred to in
paragraph 32 of this notice. It also referred to other comments he
made about other members of staff in derogatory terms. The
University advised that some of the comments made by the applicant
have caused upset and distress to the individuals concerned.
37. The University's position is that some of the language used
by the complainant within his communications goes beyond the level
of criticism that a public authority or its employees should
reasonably expect to receive.
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Reference: FS50566266 ICO. Information Commissioner's Office
Serious purpose/requestor's aims and legitimate motivation
38. The University explained that it initially applied section
43 to the information as it considers disclosure could potentially
provide competitor centres with a competitive advantage. It is
still of this opinion, but in this case it decided to focus on the
complainant's motivation and behaviour as the primary basis to
refuse the request.
39. The University does not accept that the complainant has any
aim other than:
to cause damage to the University through misrepresentation of
the information requested;
to re-open his complaints which have been conclusively resolved
through the courts and the OIA. These complaints have resulted in a
considerable cost to the University and caused significant distress
to its DSM and other staff in the Student Services Unit.
to return to his studies with the University, an eventuality
that has rightfully been denied to him due to his conduct during
enrolment and following withdrawal.
40. The University accepts that there is a wider public interest
in the subject matter of the request. The annual audit of the
University's Assessment centre undertaken by the accreditation body
DSA-QAG is carried out expressly to pass or fail centres. Details
that the assessment centre has passed are published on the DSA-QAG
website3 . The full report is intended to inform the DSM of the
audit outcomes and to satisfy the auditing body so that they can
accredit the centre. The full reports are not published and the
accreditation body confirmed to the University that it agrees that
full reports should not be disclosed.
41. The University considers that any wider public interest in
disclosure of the information requested in this case is
"insignificant balanced against his illegitimate motivation, his
dishonourable purpose and the detrimental impact [on the
University]".
Conclusion
42. As stated above, the Commissioner's approach is to assess
whether the level of disruption, irritation or distress caused to
the authority by the
3 http://www.dsa-qag.org. u k/ Assessment-Centres/
Assessment-Centre-Cardiff-Metropolitan-University. html
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Reference: FS50566266 ICO. lnformalion Commissloners Office
request is disproportionate or unjustified, when weighed against
the purpose and value of the request. When making the assessment,
he has also taken into account the context and history of the
request, ie the wider circumstances surrounding the request.
43. The Commissioner notes the University's representations in
relation to its previous dealings with the complainant. In this
case, the University has been able to demonstrate that it has
engaged to a significant extent with the complainant's
correspondence on matters associated with the subject matter of the
request. The Commissioner is prepared to accept that, cumulatively,
the University has spent a significant amount of time and resources
in dealing with the complainant's information requests, in addition
to separate subject access requests, complaints and other
correspondence from the complainant.
44. The Commissioner accepts that the request in this case can
be linked to the complainant's complaints and concerns against the
University in relation to his withdrawal from the degree course, ie
the issue at hand is one that individually affects the requestor.
The matter has been subject to independent investigation via
various complaints, reviews and court cases. The Commissioner notes
that the complainant has raised concerns at actions the University
has taken and questioned the behaviour and statements made by
University staff involved in the matter. The Commissioner is unable
to make any comment on the veracity of the claims made by the
complainant; however, he considers that the request is a further
attempt to challenge the decisions and actions taken by the
University.
45. The Commissioner notes the evidence provided by the
University about the language and tone contained within some of the
complainant's previous communications. He accepts that this has
gone way beyond what its staff should reasonably expect to receive.
The Commissioner also considers that some of the language employed
in the complainant's correspondence is particularly offensive. He
considers that the comments made, together with accusations and
allegations the complainant has made against members of staff,
would clearly be harassing to the individuals concerned.
46. Taking into account all the circumstances of the case, the
Commissioner considers that a strong case has been presented to
demonstrate that the request is vexatious. It was not the intention
of the legislation that individuals should be allowed to pursue
persona! grievances to an unreasonable extent through the use of
the FOIA. Limited public resources should not be spent on
continuous unproductive exchanges. The FOIA gives significant
rights to individuals and it is important that those rights are
exercised in reasonable way. There cornes a point when the action
being taken and the associated burden being imposed on the
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Reference: FS50566266 ICO. Information Commlssloner's Office
authority is disproportionate to the objective that the corn
plainant is attempting to achieve. In the Commissioner's opinion
that point has been reached in this case.
47. In this case the Commissioner does not consider that
sufficient weight can be placed on any serious purpose served by
the request to justify the disproportionate burden of disruption,
irritation and distress it imposes on the police and its individual
members of staff.
48. Taking into consideration the findings of the Upper Tribunal
in Dransfield that a holistic and broad approach should be taken in
respect of section 14(1), the Commissioner has decided that the
University was correct to find the request vexatious. Accordingly,
the Commissioner finds that section 14( 1) has been applied
appropriately in this instance.
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Right of appeal
49. Either party has the right to appeal against this decision
notice to the First-tier Tribunal (Information Rights). Information
about the appeals process may be obtained from:
First-tier Tribunal (Information Rights) GRC & GRP
Tribunals, PO Box 9300, LEICESTER, LEl 8DJ
Tel: 0300 1234504 Fax: 0870 739 5836 Email: [email protected]
Website: www .justice.gov. uk/tribunals/general-reg ulatory-cha
mber
50. If you wish to appeal against a decision notice, you can
obtain information on how to appeal along with the relevant forms
from the Information Tribunal website.
51. Any Notice of Appeal should be served on the Tribunal within
28 ( calendar) days of the date on which this decision notice is
sent.
Signed ........ A~ ................. . Anne Jones Assistant
Commissioner Information Commissioner's Office Wycliffe House Water
Lane Wilmslow Cheshire SK9 SAF
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