Janet Clitheroe v The Information Commissioner & Anor [2023] UKFTT 299 (GRC)

[2023] UKFTT 00299 (GRC)Appeal Number: EA/2022/0118
First-Tier Tribunal
(General Regulatory Chamber)
Information Rights
Janet ClitheroeAppellant:The Information CommissionerFirst Respondent:Lancashire and South Cumbria NHS FoundationSecond RespondentDate and type of Hearing:- 6 March 2023 - hearing on the papers.Panel: Brian Kennedy KC, Suzanne Cosgrave, and Stephen Shaw.Date of Decision:- 9 March 2023.
Between
Janet ClitheroeAppellantThe Information CommissionerRespondentLancashire and South Cumbria NHS FoundationRespondentDate and type of Hearing: - 6 March 2023 - hearing on the papers.RespondentPanel: Brian Kennedy KC, Suzanne Cosgrave, and Stephen Shaw.RespondentDate of Decision: - 9 March 2023.RespondentResult: The substituted Decision. For the Reasons set out below the Tribunal allow the appeal as an error of Law was established in the impugned Decision Notice, however no action is required.RespondentResult: The substituted Decision. for Reasons set out below the Tribunal allow the appeal as an error of Law was established in the impugned Decision Notice, however no action is required.REASONSDate 2023-03-16
[1]The final submission of the Appellant dated 20 January 2023 (3 pages) as the basis of what her Appeal now covers and at para 16, what she is asking us to do.[2]The Response of Second Respondent dated 20 January 2023 (8 pages) with its careful referencing of the bundle, e.g., Responses to the request as detailed in para 23 and the summary of the Trusts’ position at paras 24-37; and

its careful referencing of the bundle, e.g., Responses to the request as detailed

[3]The DN. Final submissions of the Appellant – 20 January 2023: [69]. The Appellants’ views, as set out in the 'Final Submissions' dated 20th Jan 2023’ are summarised as follows together with the Tribunal's response:
“The Trust's response has been "manifestly incomplete" and "totally implausible". "Beyond all reasonable doubt further information was and is held and is being concealed by the Trust". The Tribunal does not recognise this. It accepts that there were failings in the first response in that searches of 'Part 2 Papers' were not conducted but this was subsequently remedied. As a result, the briefing document, the proposal, and the final reports are all now in the public domain dealing with serious and sensitive matters. [70]. The Appellant argues requests were "met with resistance and delay because it (the Trust) wished to conceal what had been undertaken"."They were attempting to 'cover-up' the issue...an action itself indicative of institutionalised racism". The delay in forwarding the Part 2 papers is acknowledged but the Tribunal has not seen evidence that the Trust has been determined to conceal information - rather it is content that a great deal of relevant information has now been disclosed in response to a lengthy and detailed request. In any event delay is a procedural matter related to compliance and not a substantive matter in the course of an appeal. [71]. The Appellant argues that Commissioner "misrepresented the nature and details of my applications". The Tribunal does not agree with this and was impressed by the substantial correspondence between the Commissioner and Appellant in the course of the investigation leading to the DN. [72]. The Appellant argues that in relation to the procurement of Verita the Trust were "in breach of the Conflict-of-Interest Rules and the mandatory Trust's Standing Financial Instructions’ and NHS Financial Instructions". The Trust have explained its procurement process clearly and refute that it is in breach. The Tribunal has no jurisdiction in determining whether or not this is the case but confirms that it has no evidence, that on the balance of probabilities further information relating the process is available or is being withheld by the Trust. Having read all the papers and considered all the above we are persuaded that adequate searches have been undertaken to respond to the Appellants’ requests. [73]. The Appellant argues that "The Trust has since sought to narrow the scope of my applications". Again, having considered all the evidence and all the above matters, the Tribunal is satisfied that the Trust, following the disclosure of the relevant Part 2 papers in existence at the time of the request, have approached the response appropriately in terms of information within the scope of the request. [74]. The Appellant argues that "The Tribunal must accept this appeal in full and acknowledge the systematic deceit of the Trust". On careful consideration of all before us, the Tribunal does not recognise such behaviour and regrets the use of such terms. We take the view that, whether or not the Appellant is dissatisfied with the conduct of the Trust, we have considered carefully all the evidence and submissions before us and are persuaded that no further relevant information remains held by the Trust for disclosure. The Response of Second Respondent 20 January 2023. [75]. The Bundle of documents was extensive, 492 pages plus 5 pages of Index and other documents totalling more than 50 pages. The Tribunal were greatly assisted by the Response provided by the Second Respondent and the helpful summaries of the issues with Bundle page references that it provided, and we include the Final helpful Submission of the Appellant of 20 January 2023. What did the Trust hold at the date of the Request? [76]. We refer to the Final Submission of the Appellant of 20 January 2023, Paras 9 and 10. The Appellant refers here and elsewhere to what, in her opinion, was the incorrect approach by the Trust to the contracting of Verita. The Appellant stresses in her Grounds of Appeal her own extensive experience of procurement (Bundle p14). She stated that one of the underlying motives for the request was: “I wished and intended to examine every element of the contracting procedure”
. It is clear to us that the Appellant has, and had at the time of her Request, considerable misgivings about the approach the Trust had taken, and she has repeatedly suggested that the Trusts’ approach was not correct. The Appellant believes that the Trust should have undertaken “tendering” of the contract and their failure to do so was deliberate and wrong. In her Grounds of Appeal (Bundle p15) she says:
“I suspected that something very irregular had occurred in Commissioning Verita.”
The Tribunal has no jurisdiction in relation to the processes this, or any public authority, should employ and hence this is not a matter on which we can make any comment. It has however unfortunately flavoured the Appellant’s approach in these proceedings. [77]. The Trust refutes the Appellants’ assertion that they should have followed a particular process and that the approach they took was wrong and in breach of its own Standing Financial Instructions. The Trust stated that the procurement procedures referred to did not apply and provided by way of evidence their Statement of Need to Purchase Goods and/ or Services (Bundle page 180). In addition, they stated that the requirement under their SFI was waived, with that waiver documents by the Statement of Need Form (Bundle p180). [78]. The remit of the Tribunal is very narrow in this Appeal. It is to consider what information the Trust held at the date of the Request in May 2021 and whether on the balance of probabilities it has disclosed all information it held. The detail that the Appellant has provided on processes that could, and in her opinion, should have been employed and the documents/information had they been would have existed, is not within the scope of this Appeal. Did the Trust follow the correct procedure in relation to the Verita contract? [79]. We refer to the Final Submission of the Appellant on 20 January 2023 paras 9 and 16. As we have indicated, the Tribunal has no jurisdiction in determining this matter. The Trust like all public authorities will be subject to scrutiny by other bodies such as their external auditors and it is to such bodies that the responsibility for determining if the Trust is, and has been, acting correctly. [80]. The Appellant adopts the extreme phrase “systematic deceit” in her 20 January 2023 document and has made similar allegations elsewhere but has not supported these allegations with the evidence upon which she makes such assertions. The Trust has acknowledged and apologises for an error relating to material from a Part 2 Agenda of a meeting on 25 March 2021. This was acknowledged in the amended response to the Grounds of Appeal (Bundle page 66) and repeated in the Response of the Second Respondent dated 20 January 2023. [81]. A bundle of further material was disclosed to the Appellant in October 2022 (Bundle pages 358 – 395). The Tribunal has seen no evidence of the Trust being deliberately obstructive much less any intent to deceive and accept the explanation and the apology. We do not accept the Appellants’ assertion concerning intent or deceit on the part of the Trust. There is no evidence to support these serious assertions. [82]. The late identification of additional material falling within scope of the request does mean the DN produced in April 2022 was in error and incorrect. The material disclosed in October 2022 related to a meeting on 25 March 2021 and so was within scope of the request made in May 2021. [83]. This also resulted in the Commissioner accepting the adequacy of the searches outlined in the Trust letter of 7 April 2022 (bundle page 299) must be viewed as being in error. However, following the information supplied by the Trust in its Amended Grounds of Appeal (Bundle page 66) and the email dated 12 September 2022 (Bundle p316) the Tribunal do not consider, on the balance of probability that there is now further information within scope of the request that is held. We find it improbable in all the circumstances and on the evidence before us that there is further information in scope of the request, at the time of the request, held by the Trust. Reliance on S12 - DN para 16: [84]. In August 2021 the Trust claimed reliance on s12 in relation to some of the information requested (Bundle p162). However, on 13 April 2022 (Bundle page 308) in an email to the ICO the Trust withdrew that exemption as it had satisfied itself that following further searches and enquiries of Verita there was no further relevant information held. Reliance on s36 - DN para 16: [85]. The Trust withdrew its reliance on this exemption having found no basis for that initial application. (Bundle p 302) Public interest in the report: [86]. The Appellant clearly believes the scope and content of the report and the context in which it was commissioned is a matter of considerable public interest. The narrow extent of this Appeal dealing simply with the information request means the reasons for the Report and the issues it was examining is not something which falls for the Tribunal to consider or to comment upon. The material which has been disclosed under FOIA is to the world at large and so the public will be able to see and comment on those issues. Communications between the Commissioner and the Trust: [87]. The Appellant comments with some criticism on the fact that the Commissioner communicated with the Trust or individuals therein before reaching some of its decisions, we find nothing in this to criticise. Rather we would find it more surprising and more worthy of criticism if the Commissioner had reached the decisions without establishing the answers to queries arising from the investigation. Narrowing of the scope: [88]. The Appellant made a number of requests after the subject matter Request (4 May 2021) those matters cannot be considered in scope by the Tribunal. As the Commissioners’ DN (paras 15 and 17) made clear those matters are not within the scope of the investigation and hence not within the scope of the Appeal. We accept and adopt this assertion. Substituted Decision: [89]. As stated above, the Trust considered that it has now complied with section 1 of FOIA in respect of the specific Part 2 Papers falling within the scope of the Request. The Tribunal accept this assertion. However, the Trust acknowledged that it had not done so at the time of its original handling of the Request or of the DN. Therefore, we must allow the Appeal in part as there was an error of Law in the DN. That said, and for the reasons set out above and on the evidence before us we find on the balance of probabilities that the Trust do not hold any further information that was within the scope of the request at the time of the request and accordingly make no direction that the Trust take any further action. In relation to all other parts of this appeal we indicate that we accept and adopt the Commissioner’s reasoning and findings in the DN inter-alia any application under a s77 allegation as set out a Paragraph 34 above. Brian Kennedy KC 10 March 2023. Promulgated: 16 March 2023