IN THE FIRST-TIER TRIBUNAL APPEAL: EA/2018/0010

GENERAL REGULATORY CHAMBER

(INFORMATION RIGHTS)

BETWEEN:

Appellant
and

THE INFORMATION COMMISSIONER

Respondent

APPELLANT’S REPLY TO RESPONDENT’S

RESPONSE TO NOTICE OF APPEAL

Introduction

1. This Reply is served in accordance with rule 24 of the Tribunal Procedure (First-
tier Tribunal) (General Regulatory Chamber) Rules 2009.

Commissioner’s Response

2. The Commissioner’s Response does not, and cannot, refute the Appellant’s
arguments which clearly establish that Humberside Police (‘HP’) does ‘not
investigate allegations of perjury unless a request...comes from the court’ and the
 assertion that an investigation decision is made on a case by case basis entirely
undermines the explanation for why information is not held by the force.

3. HP is also undermined in respect of the inaccurate information provided to the

Commissioner, particularly a letter which is contained in page 56 of the Open
Bundle (‘OB’). The letter of 10 February 2017 suggests that HP directed more
effort in avoiding disclosure than it did identifying the source of the information,
on account of its criticism of the Appellant and arguing the case to the
Commissioner for vexatiousness.

4. For example, the Commissioner’s letter of 16 January 2017 (page 49, OB)
outlined what searches etc. she required HP to carry out to satisfy her that the
information requested was not held. In response HP stated the following.

“In respect of our initial response, the request for information was not
identified within, as in the usual style of requests from this applicant the
request was lengthy with links that did not link to anything legible.
Therefore the case worker determined it was not a valid request under
s8(1)(c). It was considered to be more of a statement than a request for
information held.”

5. In the Appellant’s defence, the background was not particularly lengthy and the
request element was clearly identifiable as it appeared just as below, i.e., in a
separated paragraph:

“Please disclose all related material (statutory or policy) which lawfully

permits or advises Humberside police that it may refuse to investigate
allegations of perjury unless a request to do so comes from the court.”

6. It is irrational also why HP stated to the Commissioner that the link provided ‘did
not link to anything legible’. The web address link led to the below annotation
made on 15 January 2016 and was provided to put the request in context:

“To put this into context. Evidence (beyond all doubt) was submitted to
Humberside Police regarding North East Lincolnshire Council producing a
false witness statement which it presented for a hearing at Grimsby
Magistrates' Court. It is an open and shut case, but this is how it was
handled. More worryingly, any other outcome to this would have been a
complete surprise:

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[Humberside Police address]

13 January 2015

CO 461/15

Dear [you]

Humberside Police is committed to providing a quality of service to all

members of the public and I am grateful, therefore, that you have taken the
trouble to bring this matter to our attention. This has been passed to me to
assess and respond to you.

Your allegation has been assessed to be one falling under the category of
neglect or failure in duty and has been assessed by the Professional
Standards Branch as being a complaint that can be dealt with under the Local
Resolution process.

I note your response to my recent e-mail that you do not wish to engage in
this process. I am able to complete the complaint in this manner and you do
have a right of appeal as indicated below.

I have sought legal advice from our Force Solicitors in respect of the points
you make.

I understand that this matter has been heard in a court of law. The advice I
have obtained is that the issues you raise may be appeal points that could be
raised at any subsequent appeal hearings.

Humberside Police do not investigate allegations of perjury unless a request

to do so comes from the court themselves.

The judge in the case is protected in law for making decisions whilst
carrying out their duties in law courts.

Therefore the advice you were given was correct and you should return to
the courts to argue the points you raise.

I have enclosed for you information a Fact Sheet entitled "Appealing against
the Local Resolution process." This document explains how you may appeal
to the Humberside Police Appeal Body in respect of the outcome of the
Local Resolution process.

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 The appropriate appeal body is the Humberside Police Appeal Body as your
complaint does not relate to the conduct of a senior officer, has not been
referred to the IPCC, does not justify criminal or misconduct proceedings
and does not arise from the same incident as a complaint where the IPCC
would have to deal with any appeal.

You have 29 days from the date of this letter, within....”

7. As noted, HP was preoccupied with criticising the Appellant and angling towards
applying the s14 exemption. A previous Decision Notice was cited which was
upheld by the Tribunal to justify characterising the Appellant vexatious. The
following was misleadingly claimed in the letter:

“The applicant has made numerous complaints to the Force, any allegations
have been investigated and the appropriate conclusions drawn. Therefore I
do not feel this is within the remit of the Freedom of Information to explain
the process so am content that a No Information held response was
appropriate.”

8. Once more in the Appellant’s defence, the truth regarding HP’s claim to have
investigated allegations is that the majority are not even recorded let alone
investigated. In respect of those allegations it refuses to investigate HP defends its
decisions which are channelled through the statutory complaints procedure. A
number have gone through that process and resulted with the Independent Office
for Police Conduct (IOPC) directing HP to revisit its decision either in respect of
recording a crime/complaint, reclassifying a complaint or investigating an
allegation.

9. Depending on the circumstances, the force can more often than not keep the
complaint under the IOPC’s radar. If the matter is considered suitable to be dealt
with by way of Local Resolution then the outcome can be appealed only to HP
Appeals Body, the IOPC can not by law get involved. The upshot is that the vast
majority of complaints are contained within the force which ensures that ‘the
appropriate conclusions drawn’ are invariably that the contested decision was the
right one taken by the force.

10. In respect of allegations it claims to have investigated, the rationale given by the
force for why it has found no evidence of criminal wrongdoing has no relevance to

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 the allegations. In cases were it is obvious that no lines of enquiry have been
pursued the force refuses to explain its findings.

11. The letter concludes with HP informing the Commissioner that it wished to
change its response, i.e., that there was no information held to considering the
request vexatious:

“On consideration of this request further, owing to the nature alongside the
extensive history of requests and previous s14 warnings/ refusals. I would
determine that this would also fall within the s14 Vexatious exemption.”

Supplementary Grounds in support of recorded information being held

12. It is not feasible that officers serving with HP would routinely state in formal
correspondence that “Humberside Police do not investigate allegations of perjury
unless a request to do so comes from the court themselves” without there being
some authoritative source.

13. It may be that the content of the CPS website has influenced force policy in
respect of investigating perjury only on the court’s say so. However, the balance
of probabilities must still be weighted to a greater extent in favour of this being
recorded in some form or another. If not, all officers who are called upon to state
what was force policy (in formal correspondence) would have only verbal
instruction to rely on which would have to exist in the mind of whoever authorises
the advice.

14. For example it would be reasonable to expect that if the advice of the CPS was
adapted by HP for its own purposes it would exist in a written communication
along the following lines, for example:

The CPS advises that where a judge or magistrate believes that some
evidence adduced at trial is perjured s/he can recommend that the police
investigate. It also advises that the absence of such recommendation does not
mean that there is no justification to investigate. However, it is the practice
of Humberside police not to investigate perjury unless a request to do so
comes from the court.

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15. It is accepted that the explanations given could have reasonably satisfied the
Commissioner that there was no policy held in relation to searches carried out on
the force’s Intranet (which held all policies and procedures), however, the task had
been narrowed down. It had been discovered that information relating to the
request was held and the advice came from the force’s legal services. All that
needed to be established was whether the information was recorded in any of the
forms covered by the FOI Act.

16. Recorded information for the purposes of the FOI Act can include ‘information
held on computers, in emails and in printed or handwritten documents as well as
images, video and audio recordings’. Therefore, after exhausting the force’s
Intranet, the information (if it was held) would exist in all probability within the
force’s legal services in one of the aforementioned forms. There is no evidence
that this possibility was explored and therefore dubiously assumed that the advice
only existed in the mind of the person within the legal services.

17. The Appellant is satisfied that on the balance of probabilities there must be further
information falling within the scope of the request held by HP.

23 February 2018