Reference: FS50809831

Freedom of Information Act 2000 (FOIA) Decision notice

Date: 20 September 2019

Public Authority: Lisburn & Castlereagh City Council Address: Civic Headquarters Lagan Valley Island Lisburn BT27 4RL

Decision (including any steps ordered)

1. The complainant has requested from Lisburn and Castlereagh City Council various information in relation to an application for funding under the Programme for Building Sustainable Prosperity (PBSP) to convert his dwelling into a Bed and Breakfast. The funding scheme was delivered by Lisburn Leader Ltd on behalf of the Department of Agriculture and Rural Development (DARD).

2. Lisburn and Castlereagh City Council categorised the request as vexatious and refused it under section 14(1) of the FOIA.

3. The Commissioner’s decision is that request is vexatious and that Lisburn and Castlereagh City Council is not obliged to comply with it.

4. The Commissioner also found that Lisburn and Castlereagh City Council breached section 17(5) as it did not give the complainant an adequate refusal notice within 20 working days.

Request and response

5. On 13 October 2019 the complainant wrote to Lisburn and Castlereagh City Council (the Council) and requested information in the following terms:

‘I have been directed to you by DAERA because your council holds the grant case files relating to the Tourism and Hospitality Grants Scheme, BSP Measure 4.6. I am writing to make an open government request for all the information to which I am entitled under the Freedom of Information Act 2000.

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1. When the then Lisburn City Council disclosed the fraud in 2009, such that a grant recipient:

 “Received and accepted an offer of funding for building works in connection with a proposal for a B & B,

 Initially confirmed to Building Control that the application was in connection with a B&B;

 Upon consideration of the costs involved in compliance confirmed in writing to Building Control that they had shelved plans for a B & B;

 Subsequently accepted £50,000 from Lisburn Leader for building costs for a B & B”;

(a) Did the Council report this fraud to Lisburn Leader Ltd?

(b) Did the Council report this fraud to DAERA (then DARD)?

(c) Did the Council report this fraud to the PSNI?

(d) Has legal action been taken against the perpetrators of this fraud to recover said sum of £50,000 of public grants monies

(e) Did this grant recipient subsequently go on to receive a top- up grant?

(f) If so how much was this for?

2. DARD’s Internal Audit Report of 2010 into the above mentioned grant scheme reported that, “While Lisburn Leader Ltd ensured that there were Building Control approvals for projects they did not consider the appropriateness of such approvals – i.e. domestic use or B & B use”, but 4. Pre Conditions i) in the Bed & Breakfast Letter of Offers required that planning and building control approvals be obtained for a Bed & Breakfast:

 How many grant recipients breached this condition in the contract?

 How much grant was each recipient awarded who was in breach of this condition?

 Has legal action been taken against these grant recipients for breach of contract?

 Did these grant recipients in breach of contract, subsequently go on to receive a top-up grant?

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 If so, how much was this for?

 Was the failure to ensure compliance with said condition reported to HMRC in 2010, given that it became highly likely that this failure would have enabled a VAT fraud to take place, with grant recipients in breach of this condition claiming back VAT on the building costs of their Bed & Breakfast developments, but with said building works having been approved under the Building Regulations relating to domestic properties.

 Has this matter subsequently been referred to the HMRC for investigation?

5. Who decided it would take 3 days of senior and middle management’s time to vet (redacted) grant case file, and that the cost of a copy of same to be provided to (redacted) would be £(redacted)?

6. Who requested that legal advice be sought on withdrawing (redacted) Bed & Breakfast Letter of Offer, even as (redacted) were building it, in full compliance with all grant conditions, unlike competitors who had breached 4. Pre-Condition l)?

7. Confirmation if (redacted) the only applicants turned down for a top-up grant, when there was actually no more deserving a case given (redacted) had complied with the commercial Building Building Regulations for a B & B, more especially given the failures to enforce grant conditions meant that (redacted) competitors avoided same?

8. Who minuted the meeting and who was responsible for making the grossly disgraceful and defamatory comments to the effect that (redacted) “owed money back”, (to another funder) and that (redacted) had “defaulted on a previous grant”?

9. Who singled (redacted) out such that my “progress should be closely monitored to ensure compliance with all grant stipulations”?

10. Who decided that (redacted) competitors should not similarly be “closely monitored”, but instead negligently facilitated them in breaching “grant stipulations”?

13. Confirmation or denial that out of all the grant recipients who are in breach of contract, it is only (redacted) who have had legal action taken against them.’

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6. The Council responded on 6 December 2018. It apologised for the delay in replying and stated that it was applying section 14(1) of the FOIA on the basis that the request was vexatious.

7. On 6 April 2019 the complainant requested an internal review.

8. Following an internal review the Council wrote to the complainant on 11 April 2019. It stated that it was upholding its original decision.

Scope of the case

9. The complainant contacted the Commissioner on 6 July 2019 to complain about the way his request for information had been handled.

10. In particular, he said he was unhappy with the Council’s decision to refuse his request on the basis that it was vexatious under section 14(1) of the FOIA.

11. During the Commissioner’s investigation the Council said it also intended to rely on section 14(2) on the basis that the current request is substantially similar to ones made by the complainant in the past.

12. The scope of the Commissioner’s investigation will be limited to the Council’s application of section 14 of the FOIA.

Reasons for decision

Section 14(1) – vexatious request or repeated requests

Was the request vexatious?

13. Section 14 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.”

14. The term “vexatious” is not defined within the FOIA. The Upper Tribunal considered the issue of vexatious requests in Information Commissioner v Devon CC & Dransfield [2012] UKUT 440 (AAC). It commented that “vexatious” could be defined as the “manifestly unjustified, inappropriate or improper use of a formal procedure”. The Upper Tribunal’s approach in this case was subsequently upheld in the Court of Appeal.

15. The Dransfield definition establishes that the concepts of proportionality and justification are relevant to any consideration of whether a request is vexatious.

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16. Dransfield also considered four broad issues: (1) the burden imposed by the request (on the public authority and its staff), (2) the motive of the requester, (3) the value or serious purpose of the request and (4) harassment or distress of and to staff. It explained that these considerations were not meant to be exhaustive and also explained 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).

17. The Commissioner has published guidance on dealing with vexatious requests1, which includes a number of indicators that may apply in the case of a vexatious request. However, even if a request contains one or more of these indicators it will not necessarily mean that it must be vexatious.

18. When considering the application of section 14(1), a public authority can consider the context of the request and the history of its relationship with the requester, as the guidance explains:

19. “The context and history in which a request is made will often be a major factor in determining whether the request is vexatious, and the public authority will need to consider the wider circumstances surrounding the request before making a decision as to whether section 14(1) applies”.

20. However, the Commissioner is also keen to stress that in every case, it is the request itself that is vexatious and not the person making it.

21. In some cases it will be obvious when a request is vexatious but in others it may not. The Commissioner’s guidance states:

“In cases where the issue is not clear-cut, the key question to ask is whether the request is likely to cause a disproportionate or unjustified level of disruption, irritation or distress.”

The complainant’s position

22. The complainant believes that the requested information is in the interest of all ratepayers and disclosure would be embarrassing to the Council.

1 https://ico.org.uk/media/for-organisations/documents/1198/dealing-with- vexatiousrequests.pdf

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The Council’s position

Case background

23. The Council provided some background to the complainant’s request to put it into context. This is set out in a confidential annex.

24. With reference to the Commissioner’s guidance, the Council explained that it considered the request to be vexatious on the grounds of abusive or aggressive language, burden, personal grudges, unreasonable persistence, unfounded accusations, futility and detrimental impact. For the purpose of this decision notice the Council’s submissions are summarised below.

Abusive or aggressive language

25. The Council has stated that given the repeated and unfounded allegations of fraud and breaches in building control, the language of the complainant’s correspondence is obviously objectionable and goes beyond the level of criticism its employees should reasonably expect to receive and tolerate. It has added that despite no evidence of fraud, breaches in building control or maladministration, the complainant is continuing to correspond with it in an abusive and aggressive manner.

Personal grudges

26. The Council has stated it is evident the complainant is using his request in an attempt to target specific employees. Also it is apparent he continues his assassination of ‘Lisburn Leader Limited’.

Burden on the authority

27. The Council has argued that the complainant is abusing the FOIA by submitting an unreasonable request. Should it have to comply with this request it would have a detrimental impact on its resources which are used for the delivery of other services and answering legitimate FOIA requests.

Unreasonable persistence

28. The Council has argued that the complainant is attempting to re-open issues which have already been comprehensively addressed and subjected to scrutiny by independent investigation. The Council has spent considerable time completing an internal audit and co-operating and assisting DARD, NI Audit Office and the NI Assembly Ombudsman in their investigation in 2010. The Council has also dealt with previous FOIA requests from the complainant in its investigations in 2010. The Council has also dealt with previous FOIA requests from the complainant in 2012 and 2013 in relation to the same subject matter. The Council

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believes it is completely unreasonable for the complainant to reopen the same issues and persist with allegations of fraud.

Unfounded accusations

29. The Council believes the complainant’s request makes completely unsubstantiated accusations by repeating unfounded allegations of fraud and breaches of contract. It has pointed out that the internal and external investigations conducted found absolutely no evidence to substantiate the complainant’s claims.

Futile nature of the request

30. The Council believes the complainant’s request has been conclusively resolved by the independent investigation conducted by the NI Assembly Ombudsman. Therefore, it is of the view that the latest request for information ‘is completely pointless’. The Council believes it cannot be expected to review the complainant’s complaints again as they have already been determined by an external and independent public body. It said that complainant is aware of the NI Assembly Ombudsman report and, from his latest FOIA request, it is apparent he is refusing to accept its findings.

Detrimental impact

31. The Council believes the facts of the complainant’s request are similar to those reviewed by the Commissioner in Decision Notice FS503246502 where the public authority’s application of Section 14(1) was upheld. The requestor in this case also pursued allegations that a public organisation had committed fraud and after an internal audit team found no basis for their claims, the allegations were also reviewed by an independent regulator which elected not to pursue the complaint. Despite this, the requestor continued to lodge several FOIA requests between 2007 and 2010. The Commissioner upheld the public authority’s decision that the 2010 request was vexatious and found the requestor’s reluctance to accept that no evidence or wrongdoing existed had limited the purpose and value of the request.

32. In relation to the Commissioner’s decision in the above Notice, FS50324650, the Council believes the similarities are that the complainant’s allegations have already been considered by the NI Assembly Ombudsman’s report and his request has been mitigated by his unwillingness to accept the Ombudsman’s findings. Therefore the Council believes the purpose and value of the complainant’s request

2 https://ico.org.uk/media/action-weve-taken/decision- notices/2011/590772/fs_50324650.pdf

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does not provide sufficient grounds to justify the distress, disruption or irritation that would be incurred in complying with the request.

33. The Council has further argued that if it was expected to comply with the complainant’s request it would impose a huge burden by obliging it to sift through a substantial volume of information (accumulated over a ten year period) to isolate and extract the relevant details in an attempt to deal with the wide scope of the request. The burden would involve the Council spending a considerable amount of time in what would be in essence a ‘fishing expedition’ causing a disproportionate and unjustified level of distress to its employees.

34. The Council has concluded that the complainant’s request is unjustified and would have a disproportionate effect should it be expected to comply with it. The request itself repeats allegations of fraud in a series of questions in which the Council has already spent considerable time and resources over the past 10 years in dealing with internal and external investigations in relation to the complainant’s unfounded and defamatory allegations.

Commissioner’s Decision

35. It is important to emphasise that section 14(1) can only be applied to the request itself, and not the individual who submits it. A public authority cannot, therefore, refuse a request on the grounds that the requester is himself vexatious. The exemption is concerned with the nature of the request rather than the consequences of releasing the requested information. There is no public interest test but the purpose and value of the request must be weighed against the impact on the public authority in responding to the same.

36. The context and history in which a request is made will often be a major factor in determining whether the request is vexatious. The Commissioner considers that the context and history of the complainant’s request in this case has a key bearing on whether or not the request can reasonably and objectively be said to be vexatious in nature.

37. The Commissioner notes that the complainant’s request repeats allegations of fraud in a series of questions in which the Council has already spent considerable time and resources, over the past 10 years, in dealing with internal and external investigations.

38. The complainant’s complaint regarding a decision to refuse additional funding under PBSP was independently reviewed by the scheme’s independent review panel in 2009 which upheld the original decision.

39. Subsequently, the complainant’s allegations of fraud in relation to the administration of the scheme were subject to internal audits by both the

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Council and the DARD. These audits found that the complainant’s application for funding was treated and determined appropriately.

40. In view of the complainant’s persistent allegations of fraud and wrong doing the NI Audit Office conducted an independent review and found the schemes procedures were appropriately followed and no further or formal action was required.

41. The complainant also referred his complaint to the NI Assembly Ombudsman, in or about 2010, who found no evidence of maladministration following a thorough and extensive investigation.

42. The Council has also dealt with previous requests from the complainant in relation to related matters in 2010, 2012 and 2013.

43. The Commissioner finds the complainant’s recent use of the FOIA is inappropriate and demonstrates an unreasonable persistence by repeating and seeking to reopen issues that have already been comprehensively addressed and independently scrutinised.

44. For the reasons given above, the Commissioner believes it would be unreasonable and futile for the Council to reinvestigate and address the matters raised in the complainant’s current request which would undoubtedly impose an unnecessary burden on its time and resources.

45. The Commissioner therefore concludes that the request is vexatious and the Council was not obliged to comply with it.

Section 14(2) – repeated request

46. Section 14(2) of FOIA states that:

“Where a public authority has previously complied with a request for information which was made by any person, it is not obliged to comply with a subsequent identical or substantially similar request from that person unless a reasonable interval has elapsed between compliance with the previous request and the making of the current request.”

47. The Council has informed the Commissioner that it would also like to rely on Section 14(2) of the FOIA on the basis that the current request is a repeated one. The information requested is the same in terms of scope and nature of previous requests which have been an attempt to make allegations of fraud and breaches of contract into matters already scrutinised under public investigation by the Ombudsman.

48. As the Commissioner is satisfied that section 14(1) of the FOIA is engaged she has not gone on to consider section 14(2).

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Procedural requirements

Section 17(5): Refusal Notice

49. Section 17(5) of the FOIA states that a public authority which, in relation to any request for information, is relying on a claim that Section 14 applies, must, within the time for complying with section 1(1), give the applicant a notice stating that fact. The time for complying with section 1(1) is 20 working days following the date of receipt of the request.

50. In this case, the complainant submitted his request on 13 October 2018, but the Council did not provide the refusal notice until 6 December 2018. The Commissioner therefore finds that the Council breached section 17(5) of the Act.

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Right of appeal

51. 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, LE1 8DJ

Tel: 0300 1234504 Fax: 0870 739 5836 Email: [email protected] Website: www.justice.gov.uk/tribunals/general-regulatory- chamber

52. 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.

53. 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 ………………………………………………

Andrew White Group Manager Information Commissioner’s Office Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF

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