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

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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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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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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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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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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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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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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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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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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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: GRC@hmcts.gsi.gov.uk 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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