RS v The Information Commissioner & Anor (Information rights : Information rights: practice and procedure) [2015] UKUT 568 (AAC)

UKUT-AAC
RS v The Information Commissioner & Anor (Information rights : Information rights: practice and procedure)
[2015] UKUT 568 (AAC) · 2015-10-20
[1]These are appeals by the information requester, Mr Stürmer, brought with my permission, against decisions of a First-tier Tribunal made on 11 October 2013. In my judgment, for the reasons set out below those decisions were wrong in law and I set them aside. In exercise of the power in s.12 of the Courts, Tribunals and Enforcement Act 2007 I re-make the First-tier Tribunal’s decisions as follows: Mr Stürmer’s appeal is allowed to the extent only of declaring that the requests for information were not manifestly unreasonable (or vexatious) either at the times when they were made or at the times when they were initially responded to by the Council. However, having regard to events which have occurred since those dates the Council is not required to take any further steps to comply with the requests. Introduction[2]In April 2006 the Second Respondent (the Council) contracted to sell land at sites in Bronte Street and Hawthorne Avenue, Mickley, Derbyshire to prospective developers for the sum of £80,000, subject to planning permission for residential development being obtained in accordance with a “development brief”. The purchasers, Wulf Investments Ltd (“Wulf”), also agreed to construct a shop on the land, which they would be entitled to let. The Council insisted on that provision as there had been substantial local concern that without it there would be no shop in the village, the previous shop having been demolished.[3]Planning permission was obtained for construction of a total of 23 houses on the land, and in around October 2007 Wulf, having constructed the shop, re-sold the two parcels of land, otherwise undeveloped, for a total of £655,000.[4]The difference between the price obtained by the Council and the price obtained on a resale of the land some 18 months later caused substantial local concern, and Mr Sturmer has been assiduous, the Council would say obsessive, in trying to discover what went wrong, and in particular whether there was either fraud or negligence on the part of Council officers and employees. He has made numerous requests for information under the Freedom of Information Act 2000, both before and after the 4 requests which were the subject of the FTT’s decisions in the appeal before me.[5]Those 4 requests were made in October 2011 and January 2012, and the Council’s response was to refuse to answer them on the ground (contained in s.14 of FOIA) that they were “vexatious”, alternatively (if the Environmental Information Regulations 2004 (EIR) applied), that they were “manifestly unreasonable” within reg. 12(4)(b). The Council have, I think, taken the same view in relation to subsequent FOIA requests by Mr S relating to the Mickley land sale.[6]In March 2013 the Information Commissioner (IC) dismissed Mr Sturmer’s complaint in relation to the refusals of those four particular requests, and by the decisions under appeal to me the FTT dismissed Mr Sturmer’s appeals against the IC’s decisions.[7]For the reasons explained below, the FTT’s decision that the requests were manifestly unreasonable/vexatious was in my judgment wrong in law and must be set aside. For reasons also explained below I have concluded that it is appropriate for me to re-make the FTT’s decision, rather than remitting the matter for redetermination by a fresh FTT.[8]There have since the dates (now between 3 and 4 years ago) when the Council asserted that it was entitled to refuse to respond to the requests been substantial developments, as regards the information released by the Council, and investigations undertaken by it. The position is now in my view significantly different. I will need to consider to what extent, in re-making the FTT’s decision, I can take into account those subsequent events.[9]It is therefore convenient to structure this decision by beginning with a recital of the primary facts, so far as directly material to this decision, in chronological order. For the most part there is no dispute as to those facts. Where there is or may be dispute is as to whether those facts evidence or indicate improper conduct on the part of Council officers or employees in relation to the sale. It is of course no part of my function to determine whether there was any such impropriety, but in determining whether Mr Sturmer’s requests were vexatious, and in particular whether the requests had a serious purpose, it is material to look at the concerns which Mr Sturmer and others were putting forward, and how they were answered.[10]The IC dealt with the matter on the basis that on a correct analysis the requests were for information on a ‘measure’ (i.e. a land sale) likely to affect the elements of the environment such as the land purpose and landscape, and therefore were requests for “environmental information”, as defined in the EIR (see the IC’s letter to the Council dated 14 May 2012). The Council’s submission to the FTT was on that basis. I have doubts about that analysis. In view of the fact that the test under s.14 of FOIA is substantially the same as that under reg. 12(4)(b) of the EIR, I propose to simplify this decision by referring for the most part only to the test in s.14, namely whether the requests were “vexatious”. My decision would be the same if reg. 12(4)(b) is the applicable provision. The history[11]In July 2004 there was an expression of interest by Wulf in purchasing the Mickley sites for £80,000. On 14 July 2004 the Council’s Executive Committee resolved to place the sites on the open market, for sale by informal tender, with the benefit of a ‘development brief’, which included the requirement to construct a retail shop. That was a potential burden on the purchaser in that it was considered that construction of a shop would not be a commercial proposition for a developer (because, as I understand it, the rent which could realistically be obtained from letting such a shop would not give a commercial return on the costs of constructing it). The proposal was that a 125 year lease of the shop site at a ground rent would be transferred to the developer, which would enable the Council as ground landlord to ensure that the shop remained used as such.[12]The sites were advertised by way of a ‘For sale’ sign on the land, advertisements in the local press, and by direct mailing to local estate agents. The result of the advertising campaign was that 24 sets of tender documents were sent out, but only 1 bid was received, which was from Wulf in the sum of £80,000.[13]The sale of the land was considered by the Council’s Executive Committee at a meeting on 6 April 2005. A report by Councillor G. Pass, who had ‘Portfolio Responsibility for Asset Management’, was considered at that meeting. According to the Council’s submission in this appeal that report included an in-house valuer’s professional opinion on value as follows:
“With regard to value the bid submitted is a similar figure to that put forward as an estimate of receipt within the previous report to Executive. If costs of providing the shop are added to the bid then the final figure equates to around £170,000 per acre for the combined development sites. This is significantly lower than the levels of values achieved for the larger housing sites at Clay Cross recently sold which have shown nearer £400,000 per acre but it reflects the bidder’s view of the poorer general location in the midst of the housing estate, probability of a requirement to divert a sewer, other service constraints and the fact that there is a split development of the site. Taking account of the above matters from an Estate Management viewpoint the offer could be recommended for acceptance subject to more detailed discussion on the design of the scheme in accordance with planning guidance which will in any event be subject to planning permission and clarification of the future management arrangements for this shop.”
[14]The Minute of that meeting on 6 April 2005 records that it was resolved as follows:
“That the offer for the sites at Mickley as detailed within the report be accepted, subject to contract and detailed planning permission with the final sum and terms to be agreed by the Director of Development and Leisure in consultation with the Executive Member with Portfolio Responsibility together with the future management arrangements for the shop and design of the development at the Bronte Street site taking into account the planning development guidance.”
[15]As a result of that meeting Wulf’s offer was accepted by the Council, subject to contract and planning permission.[16]The sequence of events, as regards exchange of contracts, grant of planning permission, any further negotiations between the Council and Wulf, and completion, is then not wholly clear from the papers.[17]According to the Council’s long letter of 18 December 2013 to certain Councillors (see para. 72 below) contracts were exchanged on 6 April 2006. (I am not sure, however, whether that was the date when contracts were exchanged, or the date when a contract previously exchanged became unconditional by virtue of the grant of planning permission). At all events it appears to be common ground that there was a significant period after the meeting on 6 April 2005 before the Council became contractually bound to sell for £80,000. It is further now clear that no steps were taken by the Council during that period to value the land.[18]Planning permission was granted for the construction of the shop and (I believe) 23 two-bedroom houses.[19]The sale was completed in June 2006, and the shop was apparently constructed by April 2007.[20]As I have said, in October and November 2007 the land was re-sold undeveloped (save for the shop) by Wulf, in two parcels, for a total of £655,000. The re-sale of the Bronte Street land (and possibly also the parcel at Hawthorne Avenue) was by auction.[21]By 2011 the parcel at Hawthorne Ave was still undeveloped. 10 of the permitted 17 houses had been built on the Bronte Street land, of which only 4 had been sold, for around £85,000 each, apparently significantly below the initially advertised prices.[22]Mr Sturmer’s first enquiry about the transaction was apparently in October 2009.[23]In September 2010 the Audit Commission informed Mr Sturmer that it could not investigate, because the transaction had taken place in audit years that were by then closed.[24]As a result of concerns raised by Mr Sturmer and others the Council’s Chief Financial Officer (Mr Mason) carried out an investigation into the sale, and in June 2011 prepared a detailed report, running to 16 pages, to the Council’s Audit and Corporate Governance Scrutiny Committee (ACGSC).[25]Mr Mason’s conclusion in para. 9.13 was as follows:
“On the basis of the evidence presented within this report I cannot see any justification to support the view that either the Council, or its officers were negligent in respect of this sale. Agreed Council procedures were followed and there was a clear market test of the land’s value which was consistent with the valuation arrived at by the Council’s Estates and Valuation Officer. While the price at which the land was resold some 2 years later was some £455,000 in excess of that received by the Council, the evidence subsequent to the sale of October 2007 is entirely consistent with a view that the land was resold at a price at which it was not possible to carry out the planned development. No Council or officer could reasonably have acted on the basis that a payment in excess of the development value of the site would be made.”
[26]Para. 2.4 stated that the report had been prepared by the Chief Financial Officer “on the basis of the files held by the Council’s Estates and Valuation team. In the view of the Chief Financial Officer these are comprehensive working papers which provide clear evidence concerning the transactions that were undertaken, and are sufficiently robust to reach an appropriate judgment regarding the transactions concerned.”[27]Para. 2.5 stated that the CFO had considered it appropriate to seek clarification of some of the contents of the files from those Officers still employed by the Council who were involved in the transaction. Those persons would have included a Mr Goodrich, a valuer in the Estates Department.[28]It was stated that a copy of the report had been provided to the District Auditor and the Police.[29]The figure of £455,000 for the increased price obtained by the purchaser on the resale was arrived at on the footing that the value of the consideration received by the Council from Wulf should be treated as £200,000, because the £80,000 sale price needed to be increased to take account of(i) Wulf’s obligation to construct the shop and(ii) the time gap between April 2005, when the sale price was agreed, and October 2007. Mr Sturmer and others have contended that that increase to £200,000 is not justified.[30]Under the heading “valuation” the report stated, in para. 9.9:
“………….In any sale process a public sector organisation disposing of an asset needs to place an appropriate valuation on that asset to protect against sale at an undervalue. In other words it still needs to ensure that the price that is offered is in line with a realistic value for the site. In the case of this sale the valuation was undertaken by the Council’s own in house officer a fully qualified Member of the Royal Institute of Chartered Surveyors. The valuation undertaken indicated that a price in the region of £80,000 to £135,000 was an appropriate price for the piece of land in question. Consideration of the offer that had been received in the Executive Report of April 2005 included the following paragraph: [The Report then set out the first of the two paragraphs of the April 2005 Report which I have set out in para. 13 above] In addition to this anecdotal evidence the valuer’s decision to recommend the sale at the valuation proposed was supported by a residual value calculation of the value of the site as a development site for housing. This calculation indicated a maximum land cost of some £115,000 would be achievable from the development. The calculation within the working papers was supported by the following statement: “There is no direct evidence of land sales within Mickley and the site is located in an area of general low values and demand. Plot values are comparable to the Danesmoor sale.”
On the basis of the evidence available the Council’s valuation officer was able to recommend the offer made was in line with the value of the land. From a review of the files it is clear that appropriate consideration was given to the decision to agree the deal, and that the price proposed was supported by a market testing exercise, by consideration against evidence of recent sales in the surrounding area, and by a residual calculation concerning the potential profitability of the development.”[31]The Council’s in house officer who was said to have carried out the valuation was Mr Goodrich.[32]At its meeting on 23 June 2011 the ACGSC considered Mr Mason’s report. Councillor Ellis expressed detailed concerns about the transaction. Mr Sturmer was present at the meeting, and was permitted to ask one question and one supplementary question. The Minutes of the meeting conclude with the following: “The Director of Continuous Improvement responded in detail to the comments of Members and Mr Sturmer. The Director concluded by stating he stood by the report and his actions taken in this matter. He further stated that he was firmly of the view that there would be no value in conducting an independent review of the transaction, given the costs and the limited amount of evidence that would be available to such a review. RESOLVED – that the [Committee] notes the report on the [Mickley land sale]”.[33]That resolution appears to have been treated by the Council as a decision not to carry out any further investigation of the Mickley land sale.[34]On 14 July 2011 Mr Sturmer made a FOI request to the Council asking various questions about the valuation by Mr Goodrich referred to in the June 2011 Report. On 10 August 2011 the Council responded, saying that Mr Sturmer was “already in possession of all recorded information relating to the Mickley land sale and the Council does not hold anything further to supply you with.” On review on 6 September 2011 the Council asserted that Mr Sturmer was in possession of the 2011 Report and that the purpose of the FOI Act did not extend to responding to questions relating to how sums of money were arrived at. As will appear from the chronology, that request of 14 July 2011 was the subject of a complaint to the ICC and then appeal to an FTT (“the first appeal” and “the first FTT” respectively). The decision of the first FTT is not the one now under appeal to me, but the course of those proceedings is of some relevance.[35]At a meeting on 25 August 2011, which Mr Sturmer also attended, the ACGSC approved the Minutes of the meeting of 14 July 2011. Mr Sturmer appears to have been of the view that the agenda for the meeting of 25 August raised the issue of the land sale, and that there was something suspicious about the fact that that item not discussed at that meeting. However, he appears to have been wrong in relation to that in that the relevant agenda item was merely the approval as a correct record of the Minutes of the meeting on 14 July, and it was those Minutes and the Index to them (circulated with the Agenda) which referred to the Mickley land sale. Mr Sturmer appears to have interpreted the reference to the Mickley land in the Index to the Minutes of 14 July as an indication that the substance of the Mickley land sale would be further discussed at the meeting on 25 August 2011, and therefore to have been shocked when it was not.[36]On 2 October 2011 Mr Sturmer complained to the IC in relation to his July 2011 request.[37]On 11 October 2011 Mr Sturmer made the first of the requests in issue before me. It sought disclosure of any documents showing the reasons why the ACGSC had decided not to pursue the matter further.[38]On 19 October the Council’s FOI officer responded saying that that and four other listed letters would not be responded to:
“No further information is held by the Council and you have previously been advised that you have received everything from our files relating to this topic. You have made approximately 28 requests for information upon the same topic over the last 2 years and have supplemented these requests by voluminous amounts of correspondence seeking opinions and interpretation of decisions made and I am now of the opinion that your requests are manifestly unreasonable in respect of those made under the EIR and vexatious in respect of those made under FOI. No further correspondence will be responded to on this topic .”
[39]On 14 December 2011 the Council responded to an inquiry by the IC, in relation to the July 2011 request, by saying that the valuation referred to in the June 2011 report was an employee’s opinion at a time when he was responding to one of Mr Sturmer’s written contentions regarding the sale, and that the information was not recorded but an opinion framed only in the employee’s head.[40]On 27 January 2012 Mr Sturmer made three more requests under FOIA. One was to a Mr Martin Iliffe, described as the Head of Internal Audit Consortium at Chesterfield Borough Council. From the background stated in the letter it appears that the police had had some contact with Mr Iliffe in relation to inquiries which Mr Iliffe had made in relation to the transaction. The request was for “copies of all relevant documentation relating to the Mickley land sale in which you were instrumental in supporting [the Council’s] Mr Mason and [the ACGSC’s] decisions.”[41]Another of the requests of 27 January 2012 was addressed to a Mr Newby, described as the Council’s Monitoring Officer. The letter asked why the agenda for the Council’s Executive meeting on 25 August 2011 had listed the Mickley sale for consideration, “yet this issue was totally obliterated even from a mention, let alone being discussed or debated”. The request was for “the reasons for such a decision being taken, along with a request to be able to scrutinise any relevant documentation relating to that decision, thus identifying at the same time, any Officers or Elected Members who promoted and supported such silence.”[42]Th e third request of 27 January 2012 was to Councillor Morley, the chairman of the ACGSC, for: “…. The reasons why, on 25 August 2011, at the ACGSC meeting, an agenda was provided which clearly listed [the sale of the Mickley land], yet this issue was never even mentioned, raised or debated let alone apologised over. This issue was totally obliterated. Why? What situation or which [Council] personnel intervened in order to have this Mickley land sale nullified and what reasons were provided and documented for doing so? Please supply the relevant information with relevant documentation.[43]On 31 January 2012 the IC issued a Decision Notice in relation to the July 2011 request. The IC accepted the Council’s contention that it had already disclosed all relevant information held in relation to the valuation:
“ The [Council] explained that information relating to transactions is held in files stored in both its legal and estates section. If the valuation undertaken by the employee was recorded, it would be held there. These files have already been searched and disclosed to Mr Sturmer. Bearing this in mind, and after having sight of the information that was previously disclosed to the complainant, the Commissioner is satisfied that the information is not held in these files.”
[44]On 24 February 2012 Mr Sturmer complained to the IC that his January 2012 requests had not been responded to in time.[45]On 6 March 2012 Mr Sturmer appealed to the FTT against the decision of the IC in respect of his July 2011 request. This is what I have referred to above as “the first appeal” and “the first FTT”.[46]On 12 April 2012 the Council informed Mr Sturmer again that he had already received all recorded information relating to the Mickley land sale and that it was not required to comply with the requests of 27 January 2012 because they were vexatious.[47]On 11 May 2012 solicitors acting for Mr Mason, Mr Iliffe, Mr Goodrich and one other wrote to Mr Sturmer complaining of alleged harrassment, and defamation, of their clients by Mr Sturmer in the form of the tone and content of his repeated correspondence, and threatening proceedings if that allegedly wrongful conduct continued.[48]In its response to the first appeal the Council reiterated that it had provided all recorded information, and also said:
“The Appellant has also been advised that the Council is under no obligation to “make up” recorded information and that the mention of £80,000 was opinion not recorded information.”
[49]The Council maintained that stance in its review decision on 5 July 2012.[50]On 28 June 2012 the first FTT made some Directions, in effect at Mr Sturmer’s request, requiring the Council to respond to a detailed set of questions designed to explain the apparent conflict between(i) the statement in the June 2011 report that there had been a residual valuation by a Member of the RICS which had been relied on by the Council and(ii) the Council’s statement in its letter to the IC of 14 December 2011 that that valuation was information which “was not recorded but an opinion framed only in the employee’s head.”[51]In response to the FTT’s Directions, on 3 August 2012 Mr Mason made a witness statement saying that the valuation which he had referred to in his June 2011 report was held in the paper file, and he exhibited it to his statement as exhibit “BM1”. He said that the figures of £80,000 to £135,000 stated in his report had been obtained from that valuation, and should have read £80,000 to £115,000, the larger figure having been incorrectly transposed.[52]Exhibit BM1 is undated. It contains a valuation of the land by Mr Goodrich on two bases. The first is a residual valuation which values the undeveloped site at £81,790. The second is one which simply estimates the potential 23 house plots at £20,000 each, and then deducts from that total the estimated costs of constructing the shop and certain other costs, arriving at a total valuation of £115,500.[53]The document is headed “Report of Estates and valuation section” and sets out the following “summary conclusion” at the end:
“The land bid appears reasonable for risk of the developer in building a lock up shop unit and obtaining planning permission. There is no direct evidence of land sales within Mickley and the site is located in an area which is of general low values and demand. Plot values are comparable to Danesmoor land sale.”
[54]Mr Goodrich made a witness statement, also dated 2 August 2012. In purported answer to the question whether he valued the land at around the time of sale he unhelpfully said that “there was no valuation exercise undertaken at the time the tender brief was put together. See report to Executive dated 14 July 2004.” That was the report to the meeting which decided that the land should be marketed for sale. In response to the question whether he ever made a note of a valuation of £80-135,000 anywhere he said:
“Yes, a residual assessment (as opposed to a formal valuation) of the offer was made once the detailed planning aspects of the development were clarified and that formed the basis of the subsequent reports to the Council.”
[55]The first FTT then made additional directions, to which the Council responded by letter on 18 September 2012. The answer to a question as to the date of the residual assessment was:
“Whilst Mr Goodrich is not able to ratify the exact date of the assessment it would have been produced as a file document once the planning permission had been granted which identified the approved development and estimate of likely build cost per unit type had been obtained (see attached cost per unit breakdown of 29 June 2006). This assessment sets out the basis upon which Officer recommendation to sell at the price bid at the time of acceptance and subsequent signing of conditional contract, once verification of the likely build cost had been obtained and layout of the development finalised. This residual assessment identified and recorded that the assumptions made by Officers in respect of the land value which was incorporated within the reports to Executive were, in the opinion of Officers, based on sound principles at the date of acceptance of offer and subsequent entering into conditional contract.”
[56]The attached cost per unit breakdown was an email dated 29 June 2006 from the development officer of a housing association to Mr Goodrich stating that body’s costs of building houses at a property which, coincidentally, was on a road called Hawthorne Avenue. It has subsequently been confirmed that that related to a wholly different site in Sheffield.[57]The Council’s response to the first FTT’s question why BM1 had not been disclosed in answer to Mr Sturmer’s requests was:
“The Council was of the view that Mr Sturmer was in receipt of all documentation relating to this matter. It appears that this document was not included and the realisation has only just come to light as a result of this Tribunal case.”
[58]Ms Sturmer had requested an internal review of the Council’s decision in relation to his October 2011 and January 2012 requests on 6 July 2012. He was provided with the outcome of that on 25 October 2012. The outcome was to uphold the previous decision that those requests were vexatious. (I shall refer to those requests as “the second appeal requests”)[59]On 23 November 2012 the FTT decided the first appeal. The decision was that although at the date of the request the Council held further information which it had not provided (i.e. exhibit BM1 and the email of 29 June 2006), that information had been provided pursuant to the proceedings, and the Council was not therefore required to take any further steps. The FTT’s decision was heavily critical of the Council for not having provided that information earlier.[60]In late 2012 and early 2013 Mr Sturmer asked further questions of the Council, particularly as to when the deposit and other monies were received, and as to how the figure of £200,000 as the value of the consideration effectively received by the Council (as stated in the June 2011 report) could be justified.[61]On 6 March 2013 the IC made his decision in relation to the second appeal requests. His Decision Notice runs to 16 pages. His conclusion was that those requests were in all the circumstances manifestly unreasonable. He took into account the fact in the course of the first appeal additional information had been provided, after the second appeal requests. In para. 48 the IC said:
“ The Commissioner accepts that the requests did have a serious purpose and value, however this has weakened over time and as further detail and information have been made available through public scrutiny and the disclosure of information in response to requests. The Commissioner considers that the failure to find information relevant to any fraud or negligence over this period of time, and through the disclosure of this information has weakened the purpose and value of these requests significantly.”
[62]In March 2013 Mr Sturmer wrote to the Council and the FTT referring to what he described as two important discoveries, namely(i) that the residual valuation could not have been made until after 29 June 2006, and therefore (contrary to the statements in the June 2011 report) could not have formed the basis for the decision to sell at £80,000 and(ii) that the construction costs stated in the email of 29 June 2006 did not relate to the Mickley land.[63]On 21 March 2013 the Council itself resolved at an EGM to refer the matter to the police again.[64]Mr Goodrich retired from the Council at some time in 2013.[65]On 7 May 2013 the Council responded to Mr Sturmer’s correspondence of March 2013. The letter included the following:
“I note what you say about the document BM 1 that was found at the time of the FTT case. Whilst I can see that the document should have been produced in response to one of your original requests (and I know you have received an apology for this) I do not understand why you believe this document is so fundamental to the matter and your belief that there is something wrong with the transaction. When the document was produced does not have any relevance as the decision to sell was based on the contents of the 2 reports to Cabinet in 2004 and 2005. In relation to your point about the email, I agree that it was erroneously produced to the FTT as relating. This was not done deliberately nor indeed did it make any difference. As you know the Council has, subsequently, agreed that this email does not relate to Mickley. There has been no attempt to justify the Mickley land sale after the event. The details of this transaction are contained in the Cabinet reports from 2004 and 2005, copies of which you have had. You have not produced any evidence that shows that the decision was made in reliance upon any other documents. …………………. Finally you ask how documents produced in 2006 supported and influenced a decision in 2005. You have misunderstood the statements supplied to the FTT. There never was any definite dating of this document. What there was, was an attempt to explain how it might have been used to confirm the sale price calculations after planning permission had been obtained.”
[66]In July 2013 the Police asked the Council to use the following statement as to the Police’s position:
“At this stage the Police cannot categorically say that a criminal offence has not taken place. However after consultation with the Council we have not been presented with any evidence that indicates a criminal offence has taken place.”
[67]On 17 August 2013 a group described as the North East Derbyshire Conservative Councillors wrote a long letter to Mr Lumley, the Chief Executive of the Council, asking a detailed series of questions in relation to the sale. They referred to what they considered to be the “stonewalling” of Mr Sturmer’s inquiries, and continued: “For the record the stonewalling to which we refer included the Council’s use of the Data Protection Act to frustrate Mr Sturmer’s efforts to further this investigation, the obvious reluctance to answer his admittedly voluminous correspondence, the attempt to intimidate him by threat of legal action, the stubborn refusal to accept that Mr Mason’s report to the AGSC was seriously flawed, the refusal of all Conservative requests for an independent audit and the provision of inaccurate data to the FTT. It was this last event which actually triggered our review of the situation and led to the conclusion that, if examined objectively and without preconceptions, the accumulated evidence would support Mr Sturmer’s allegations that only fraud could explain the immense difference between the Council’s and Wulf Investments’ selling prices. As you might expect once we reviewed the evidence from the new perspective the possibility of fraud, as opposed to sheer incompetence, increased markedly.[68]The letter further stated that “members were not aware of what occurred in the critical period between Councillor Pass’s report of 6 April 2005 and the contact date of 4 April 2006. In fact none of this would have come to light at all had it not been for Mr Sturmer’s investigations.”[69]In October 2013 the Council made Mr Sturmer a “persistently unreasonable complainant” in accordance with its procedure. This required Mr Sturmer to use a single point of contact for correspondence with the Council.[70]Mr Sturmer had applied to the Upper Tribunal for permission to appeal against the first FTT’s decision. In response to some Directions which I made in relation to that application, the Council’s lawyer said:
“the Council submits that Mr Goodrich’s submissions as stated [above] confirms that so far as Mr Goodrich could recall he used the valuation (BM1) not at the time of the agreement to sell, but a year later at some time following the granting of planning permission. The Applicant seeks to establish that BM1 could not have been used in 2005 at the time of the sale; the [Council] did not submit to the FTT that it was used. The [Council] therefore submits that it did not mislead the Tribunal.”
[71]On 11 October 2013 the second FTT dismissed Mr Sturmer’s second appeal, following an oral hearing at which Mr Sturmer appeared. I refer to its decision in more detail below.[72]On 18 December 2013 Mr Lumley provided a long response to the Conservative Councillors’ letter of 17 August 2013. He contended that there was no evidence of fraud or negligence on the part of the Council. As regards the role of the Council’s estates and valuation department, the following was stated: “The keeping of files is a matter for the individual professional officers keeping the files. Both the Legal and Estates files (both of which are fairly substantial) have been reviewed and considered by officers. There is nothing to suggest anything amiss with the file keeping. ……………………. In terms of the valuation, the Council employs professional officers who are expected to do a professional job. The professional officer in this case presented his professional opinion as to the valuation and reported his view to the Members in the Executive Report. This is the same way as valuations are always presented. You query how a professional officer could have recommended this deal. In effect you are querying the decision of Executive (as well as the competence of the professional officer) to sell on this basis. It is the Executive which takes the decision and is therefore responsible for the decision. Having looked at the Estates files, all the details of the deal were before the Members of the Executive when they made the decision, including the demolition costs and the professional view of the officer as to value.[73]On 6 January 2014 I refused to extend Mr Sturmer’s time for appealing against the first FTT’s decision. Part of my reasoning was that even if the first FTT’s decision were set aside, it did not appear that as a result of any rehearing the Council would be directed to disclose any further documents.[74]On 4 February 2014 the Conservative Councillors made a detailed reply to Mr Lumley’s letter of 18 December 2013. The letter accepted that there was no sufficient evidence of fraud, but contended that there had been incompetence. In particular, it was contended that(i) Mr Goodrich should have kept a formal record of the advice which he gave in or around April 2005, and the basis on which he gave it(ii) Mr Goodrich’s advice in April 2005 was incompetent(iii) it was unwise not to have sought external advice as to valuation(iv) the 24 other persons who had requested tender details should have been followed up.(v) Mr Mason’s analysis in June 2011 of the consideration received by the Council as having been equivalent to £200,000 could not be supported.[75]On 24 February 2014 the Council passed a resolution which, inter alia: · Noted that no evidence of criminal behaviour to refer to the Police had been discovered · Noted that there was no evidence of negligence by the Council’s officers in the sale of the land at Mickley · Agreed that there should be no further action taken in relation to this matter. The FTT’s decision of the second appeal[76]The FTT expressed its conclusions as follows: “24. Mr Sturmer is strongly committed to his cause which he has pursued for the past four years, generating a very large body of correspondence and numerous requests for information which have disclosed all the material (as found by the Tribunal on a previous occasion) which the Council holds relating to the sale in 2005. Many years subsequent to that further material is generated by the Council’s reconsideration of issues raised by the sale (for example Minutes of the Council meeting in March 2013 when the Council referred the matter to the police).25. The requests have imposed a very considerable burden on the Council and its officers. During the course of the requests Mr Sturmer has made harmful allegations against many people; his default position appears to be to criticise and complain against people who do not agree with him or do what he wants. In addition to council officers he has complained against a police officer for taking a different view of the matter from him.26. Mr Sturmer has not put forward any evidence that there is a real interest in the land sale from any regulator or similar public body. Clearly if the police or a regulator is presented with proper evidence of relevant wrong-doing then they will take action; in that sense the door is never closed and such bodies would always be “interested”, but none of them are taking any active steps, they will act only if something of substance emerges. Nothing has, and the position statement of the police in July an admirable summary of the position that such bodies take – and at present there is nothing for them to act on. There is no evidence of wrong-doing and requests to the Council cannot bring forward information which the Council does not hold. Taking a broad view of these requests in their context it is clear that they can serve no proper purpose and are manifestly unreasonable. Conclusion27. It is clear that there is no serious purpose behind these requests. The processes of FOIA and EIR have gone as far as they can and they have disclosed nothing. There is no evidence to sustain Mr Sturmer’s suspicions. The burden on the Council and its staff has been considerable, his attempts to get disciplinary action against officers is evidence of his unreasonable approach. No public interest is served by his requests. The Tribunal is satisfied that the ICO’s Decision Notice is correct, the requests are manifestly unreasonable and dismisses the appeal. Analysis, findings and conclusions[77]In giving permission to appeal against the second FTT’s decision I stated that it was arguable that the FTT’s decision was wrong in law in at least three respects. The first of those was:
“ The First-tier Tribunal’s decision proceeds on the basis, stated most clearly in paragraphs 26 and 27 of the decision, that there was no serious purpose or value to the Appellant’s requests because his previous requests under FOIA had not disclosed any evidence of “wrongdoing” on the part of the Council. However, that approach appears to overlook that, as a result of the Appellant’s persistence, and directions made by the First-tier Tribunal which heard appeal no. EA/2012/0052, documents were disclosed by the Council which appeared to indicate (a) that the Council agreed to sell the Mickley land in 2005 without having obtained a formal valuation of the land and (b) that para. 9.9 of the ACGSC Report dated 23 June 2011 was misleading in appearing to indicate that a residual valuation prepared by Mr Goodrich had in some way been relied upon by the Council when agreeing to sell the Mickley land in 2005 at the price which it did, when in fact that valuation cannot have been prepared until some time on or after 29 June 2006. The Appellant had drawn attention to this apparent discrepancy in, in particular, his letter to the Council dated 30 March 2013 (p. 350 of the papers before the First-tier Tribunal). The First-tier Tribunal may further have overlooked that the public interest is not confined to conduct by Council officers and/or employees which is criminal (and which the police could properly investigate), but can extend to conduct which is negligent and/or in breach of the duties owed by council officers and employees. Whilst this basis of appeal relies in part on events occurring after the date of the Council’s responses to the information requests in issue in the present appeal, the First-tier Tribunal itself appears to have done so in (in particular) paras. 24 to 27 of its decision. If reference to subsequent events was not permissible, the First-tier Tribunal’s decision may have been wrong in law on that ground.”
[78]One of the points which the Council makes in response to this appeal is as follows:
“In relation to the ACGSC report of 23 June 2011, para. 9.9, the [Council] does not agree that this is misleading. The reference in paragraph three of 9.9 to the residual valuation is in terms of it endorsing the original valuation. There is nothing in this paragraph which purports to say that the residual valuation was relied upon when the decision to sell was made in 2005.”
[79]In my judgment the FTT did go wrong in law in the course of forming its conclusion that there was no serious purpose or value to the second appeal requests. The error was the first one which I identified in my grant of permission to appeal, set out above. I cannot accept the Council’s contention that para. 9.9 of Mr Mason’s June 2011 report does not indicate that Mr Goodrich’s residual valuation was relied upon by the Council when making the decision to sell the land to Wulf in April 2005. In my judgment the clear implication of para. 9.9 was that the residual valuation had been relied upon by the Council when deciding in April 2005 to sell the land to Wulf. It is possible that Mr Mason did not intend to create that impression, but that is the impression which his report created.[80]The Respondents submit that even if the requests did have a serious purpose or value, the second FTT’s decision should be upheld because the other factors relied on by the IC and the FTT in any event rendered the requests vexatious. However, the FTT’s error in relation to the important question whether the requests had a serious purpose or value in my judgment requires the FTT’s decision to be set aside as wrong in law. It is not clear that the FTT would have made the same decision had it not made that error.[81]Both of the Respondents invite me, in that event, to re-make the FTT’s decision. In my judgment it is appropriate to do so.[82]In my judgment Mr Sturmer’s second appeal requests were not vexatious at the times when they were made or at the times (19 October 2011 and 12 April 2012) when they were responded to. Mr Sturmer had not received a satisfactory response to his initial request (made in his letter of 14 July 2011). He had simply been informed that he had been provided with all information held by the Council in relation to the Mickley sale. The requests at issue in the second appeal were directed to information showing the reasons for the Council’s decision in June/August 2011 not to pursue the issue of the Mickley land sale any further. Having not received full information in response to his questions which asked directly for information about the sale process in 2005/6, it was in my view not unreasonable to see whether requests for information about the decision in June 2011 not to question that process further would enable him to understand the situation better.[83]I of course take into account the other matters on which the second FTT and the IC (in a decision which was more detailed than that of the second FTT), relied in deciding that, in all the circumstances, the requests were manifestly unreasonable. The IC dealt with the factors relevant to manifest unreasonableness under 5 headings. Those headings in substance take into account the factors which had been identified as particularly material by the Upper Tribunal in Information Commissioner v. Dransfield [2012] UKUT 440 (AAC) , whose approach has since been approved on appeal [2015] EWCA Civ 454 .[84]Under the heading “whether compliance would create a significant burden in terms of expense and distraction” the IC noted that in 2011 Mr S had sent 132 pieces of correspondence to various Council personnel and received 91 letters in response. Between January and June 2012 he had sent another 51 pieces of correspondence and received 7 responses. He continued with substantial correspondence thereafter. There is no doubt that this correspondence caused a substantial burden for the Council.[85]Under the headings “whether the request is designed to cause disruption or annoyance” and “whether the request has the effect of harassing the public authority or its staff” the IC concluded, in para. 36, that “The Commissioner considers that the council has correctly identified features of previous requests made by Mr Sturmer that would have the effect of harassing members of its staff: · The volume and frequency of correspondence · The use of derogatory or accusatory language against specific officers · An unreasonable fixation on individual members of staff, treating a non-response from those members as evidence of guilt, or of gagging by the Council · The mingling of requests with accusations or complaints.”[86]Having read the bulk of the voluminous correspondence, I consider that those findings were justified. There is no doubt, in my view, that looking at the matter in the round Mr Sturmer wrote an unnecessarily large number of letters, to an unnecessarily large number of councillors and officers, and that some of them were expressed in unnecessarily aggressive terms which were capable of causing unnecessary distress to the recipients. He has positively bombarded the Council and various councillors and officers with FOIA requests and requests for explanation. The burden on the Council has been very considerable. But in my judgment, looking at the position in the round, the particular requests in issue before the second FTT were not vexatious ether at the time when they were made or when they were responded to.[87]However, they would in my judgment be vexatious if made now. Since they were made and responded to Mr Sturmer has received further information, in the form of the residual valuation and the additional explanation given by the Council. The Council has accepted that the residual valuation referred to in Mr Mason’s 2011 report cannot have been made until late June 2006 at the earliest, and so cannot have been relied upon by the Council in deciding to sell to Wulf in April 2005. In addition, the original purpose of the requests has been further diminished by the fact that the Council’s decision in June 2011 not to pursue the question of the sale further has in a sense been rendered substantially less important by the fact that the Council has, at the instigation primarily of the Conservative councillors, looked at the matter again in February 2014 and again decided that no further action should be taken. The Conservative councillors had themselves looked at the evidence and set out in their letter of 17 August 2013 the features of the original transaction which they still considered unsatisfactory. There is in my judgment no realistic possibility that the Council holds any further recorded information as to the reasons for the Council’s decision in June 2011 not to pursue the matter further. In paras. 50 and 51 of its response to the second FTT, the Council pleaded (as it had earlier asserted in correspondence) that it had provided the agenda, minutes and reports relating to the meetings on 23 June and 25 August 2011, and did not hold any further documents relating to those meetings or decisions. There is no reason to believe that that is not the case and that anything further would be disclosed if the requests were required to be answered. Nor is there now any likelihood that any such further information would reveal anything useful about what went on in 2005 and 2006.[88]For the avoidance of doubt, my decision should not be read as meaning that no criticism can be made of the Council’s conduct of the sale. It is not for me to decide whether should have been a further valuation or additional or different marketing. The issues in this appeal do not require me to form a judgment about that.[89]As Mr Sturmer has pointed out, it is unclear why (on the explanations which the Council has given) Mr Goodrich carried out the residual valuation at a time when the Council was already contractually committed to sell for £80,000. The wording of that residual valuation seems odd. It appears from its terms to have been done at a time when planning permission had not yet been granted, which is inconsistent with what the Council said in the letter referred to in para. 55 above. Indeed, the statement on the first page of the valuation “the land is not to be sold with outline planning permission but subject to planning guidance (see tender documents)” appears to be consistent with the valuation having been carried out before exchange of contracts, which is, however, not consistent with the reference to June 06 later on in the valuation (although the ‘06’ appears itself to be a manuscript amendment).[90]There are therefore some possibly unsatisfactory features of the sale transaction, and some points (particularly in relation to the residual valuation) which may still be unclear. But it is unrealistic to think that any further clarity is now going to be obtained from answers to these (or any other) information requests. The relevance of events which occurred after the responses to the requests[91]Under s.50(1) of FOIA any person may apply to the IC “for a decision whether, in any specified respect, a request for information made by the complainant to a public authority has been dealt with in accordance with the requirements of Part 1.” That required the IC to consider (in this case) whether the requests were vexatious at the times when they were refused.[92]However, if the IC had found, as in my judgment he ought to have done, that they were not vexatious at that time, the IC would then have been required by s.50(4) of FOIA to determine “the steps which must be taken by the authority for complying with [section 1(1) of FOIA] and the period within which they must be taken”. It was held by the Upper Tribunal in Information Commissioner v HMRC and GG [2011] UKUT 296 (AAC) that in determining what steps to direct the IC can take into account events occurring after the date when the information request was responded to. In my judgment, therefore, if the IC considers that he ought not to require the request to be answered because, although not vexatious when made, it has in effect become so by reason of subsequent developments, there is no reason why he should not so decide. The IC in this case did in effect take the view that he could take into account subsequent developments.[93]Under s.58 of FOIA, if an FTT considers that the IC’s decision notice is not in accordance with the law, or that the IC ought to have exercised his discretion differently, “the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner”. In my judgment, that reference to “such other notice as could have been served by the Commissioner” does not prevent the FTT, in determining what (if any) steps to direct an authority to take, from taking into account events occurring after the date of the IC’s decision notice . The reference is in my judgment only to the nature of the directions which the IC could have made, and is not intended to impose any temporal limitation on what events can be taken into account. It therefore follows, in my judgment, that in determining what steps to direct an authority to take the FTT is entitled to consider whether, by reason of events down to the date of its decision, the information request has in effect become vexatious.[94]It follows, in my judgment, that where the Upper Tribunal, in exercise of the power in s.12 of the Tribunals, Courts and Enforcement Act 2007, decides to re-make the FTT’s decision rather than referring the matter to a fresh FTT, in deciding what (if any) steps to direct the public authority to take the Upper Tribunal is entitled to consider events down to the date of its decision. The direction in s.12(4)(a) of the 2007 Act that the Upper Tribunal “may make any decision which the First-tier Tribunal could make if the First-tier Tribunal were re-making the decision” has that effect. My decision[95]In my judgment the policy behind s.14(1) of FOIA and (if it is the applicable provision) reg. 12(4)(b) of the EIR demands that, in all the circumstances of the present case, including the significant events which have occurred since the dates when the requests in issue were responded to, the Council should not be required to answer those requests. Although not vexatious when made, they have in effect become so, and would be so if made now.[96]Further, and for the sake of completeness, if reg. 12(4)(b) of the EIR is the material provision, in my judgment the public interest in maintaining that exception outweighs the public interest in disclosing the information (if, which I do not think is the case, there is any). There is no remaining public interest in attempting further to explore the reasons behind the Council’s decision in June 2011.[97]I therefore re-make the second FTT’s decision in the terms set out in paragraph 1 above. Charles Turnbull Judge of the Upper Tribunal 20 October 2015

Cited in 8 later judgments