SBC Policy re NYE Contributors Arbitrarily Designated “VEXATIOUS”

SBC Policy re NYE Contributors Arbitrarily Designated “VEXATIOUS”

• by TIM HICKS.

Background

Regular readers of the North Yorks Enquirer (NYE) will be aware of the furore surrounding the recent revelations that Scarborough Borough Council (SBC) Officers have used the Council’s surveillance powers under the Regulation of Investigatory Powers Act (RIPA) to intercept Councillors’ emails. This power has been applied to persons (thought to include NYE contributors), SBC Officers deem to be “vexatious”.

However, it is not generally known that SBC Officers have also followed a related policy of declining to provide information requested in Freedom of Information (FOI) Requests from some NYE contributors on the basis that they are “vexatious”. This decision is usually notified anonymously in an unsigned mail. Similarly, SBC Officers have also followed a policy of ignoring correspondence from some NYE contributors, presumably for the same reason.

In August 2017, I submitted a Freedom of Information Request to identify what – if any – covert or surveillance operations SBC had initiated under RIPA. The response in August 2017 was essentially “We are not going to tell you because we have designated you as vexatious”. It therefore came as no surprise to me when Councillor Tony Randerson and Councillor Janet Jefferson very properly and courageously revealed in full council on the 6th of November 2017, that SBC Officers have been intercepting Councillors’ emails without their knowledge. Video-clip of the Council meeting below:

SBC 06.11.17 email interception revelations in Full Council

In short, SBC Officers had withheld information from the local press that Councillors had a right to know, to prevent exposure of a highly controversial policy which they had implemented without the knowledge or consent of Councillors. Clearly an unsatisfactory state of affairs whichthat the press had a duty to expose. It appears that the SBC policy on dealing with people it designated as “vexatious” had been used to withhold information from Councillors and to prevent lawful scrutiny by the local press.

Fed up with being ignored by SBC Officers, I decided to try and resolve this situation by writing an open letter to SBC leader Councillor Derek Bastiman, which was published in the NYE.  In this and subsequent correspondence with Councillor Bastiman I asked the following six questions:

Dear Councillor Bastiman,

You have been quoted in the North Yorks Enquirer as having stated:

“The council has recently been criticised by some of its own councillors for the way in which emails from unreasonable complainants are handled. Again this is disappointing when those councillors approved the policy in relation to this to protect our staff and elected members. Our policy on this process is clear. Such behaviour is dealt with by a simple, overt, and reasonable practice, which is in operation throughout the public sector for the protection of not only staff and councillors, but also to protect limited resources and ensure the council’s ability to correspond with its customers and deliver its services is not hindered. We will continue to take all reasonable steps, as laid out in the policy, to comply with our legal and moral responsibility to look after our staff and members.” 

If this is so, then in accordance with your assurances that Scarborough Borough Council apply this policy in a “simple, overt, and reasonable” way, please can you confirm:

1) Is this policy applied to me?

2) If so why has it been applied and what incidents does SBC cite, to justify applying it to me?

3) On what basis SBC alleges that the purpose of the North Yorks Enquirer is to cause “nuisance and disruption” to SBC as a justification for refusing to respond to Freedom of Information requests and correspondence. Given that SBC Councillors publish articles in the NYE and it’s stated objective is: “The North Yorks Enquirer is an internet news magazine covering local, regional and some national news. It provides a forum for citizen journalists working in the public interest to expose wasteful spending, malpractice and corruption in authorities around North Yorkshire and beyond”.

4) Please can you provide a copy of the Council’s policy on this.

5) Please can you confirm who authorised the application of this policy to me.

6) If any Councillors or Council employees are alleging harassment by myself and if so, on what specific basis.

I have tried to resolve these issues (and others) correspond with Mr Kitson and Mrs Dixon on this topic, but they have ignored my correspondence and this obviously conflicts with your assurances that the policy is applied overtly and reasonably.

I look forward to hearing from you in due course and will publish your response in full.

Kind regards,

Yours sincerely,

Councillor Bastiman responds: The official SBC view

I promptly received a series of extremely courteous responses from Councillor Bastiman over a short series of emails which is summarised below as follows:

Dear Mr Hicks

Thank you for your e-mail I can respond to the questions raised as follows:-

1. No, you have not been declared as an unreasonable complainant under the policy and therefore no measures applied.
2. The basis is quite clear regardless of what NYE currently claim to be their purpose. This has been thoroughly examined by the Information Commissioner’s Office, who have taken into account both the Council’s position and that of the NYE. The resulting ICO decision notice strongly supports the Council’s position and can be accessed here: https://ico.org.uk/media/action-weve-taken/decision-notices/2015/1433042/fs_50550297.pdf
3. The policy can be accessed on the SBC website at: https://democracy.scarborough.gov.uk/mgConvert2PDF.aspx?ID=12595
4. It is the Council’s position that the collective actions and behaviour of persons who contribute to the NYE website are causing nuisance, disruption to service delivery, and distress. This position was determined by the Director’s Team.  As somebody who contributes to this website, you are involved with those collective actions and this position therefore applies to you.
5. There is no blanket policy that FOIA requests from persons involved with the NYE will be treated as vexatious.  Any request from a person involved with the NYE is considered on its own merits whilst also taking into account relevant context and the Council’s position outlined above, following which a decision is made in relation to that request.
6. It is the Council’s position that the collective actions and behaviour of those persons who contribute to the NYE website are causing nuisance, disruption to service delivery, and distress. I refer again to the Information Commissioner’s decision notice which provides clear independent support of the Council’s stated position in relation to FOI requests: https://ico.org.uk/media/action-weve-taken/decision-notices/2015/1433042/fs_50550297.pdf”

Kind regards

Cllr Derek Bastiman

Leader of the Council

Scarborough Borough Council

Town Hall, St Nicholas Street

Scarborough, YO11 2HG

This is consistent with the positon previously provided to me in an anonymous e mail, when I submitted an FOI request which I received in August 2017:

The Council relies on section 14(1) of the FOIA which states:

Section 1(1) does not oblige a public authority to comply with a request for information if the request is vexatious.

It is the Council’s position that this request is vexatious having taken into account context, in particular: [Numbers in brackets refer to the response below]

(7) your own request behaviour and history;
(8) the request behaviour and history of those who are part of the same pressure group;
(9) your continuing attacks upon Members and Officers of the Council through use of your group website and social media;
(10) the continuing and collective attacks by those who are part of the same pressure group upon Members and Officers of the Council through use of your group website and social media;
(11) your group’s collective stated aim to cause nuisance and disruption to the Council.

The Council also refers to the following ICO Decision Notice which relates to the activities of your group:

https://ico.org.uk/media/action-weve-taken/decision-notices/2015/1433042/fs_50550297.pdf

Paragraph 10 of the Decision Notice sets out 3 bullet points, being part of the explanation that the Council provided to the complainant (a member of your group) when using section 14(1). These bullet points are just as relevant to your request and are repeated below:

(12) Your involvement and active participation in the activities of a campaign group, whose stated aim is (inter alia) to cause nuisance and disruption to the Council, has been taken into account;

(13) Articles, stories and other contributions to the websites used by yourself and the campaign group raise personal attacks against Council Officers, Elected Members, and others associated with Scarborough Borough Council. The content is often offensive, accusatory, defamatory, and partial;

(14) The collective requests and correspondence from those who participate in this campaign group have over a number of years caused disruption, irritation and distress, as well as having a significant impact upon the Council’s already stretched resources.

Your past behaviour (and that of the group in which you term yourself as “Crime Correspondent”) indicates clearly that should the Council respond to your request, this will result in further requests and correspondence, and a refusal to accept the Council’s position, thus further wasting limited resources and causing undue nuisance and distress. It is also anticipated that this response (as with any response this Council might make to requests from your group) is likely to be the subject of an offensive, sarcastic, accusatory and partial “story” on your group’s website and upon social media, whether by yourself or other members of your group.

The following excerpt from paragraph 35 of the ICO’s Decision Notice referred to above is also of relevance:

“…The Commissioner also accepts the Council’s assertion that the nature of these requests and of the group’s statements and wider activities has caused significant harassment and distress to the Council’s staff and members. The Commissioner is strongly of the view that this adds even further weight to his decision that section 14(1) was correctly engaged in respect of the requests considered here.”

Some observations on the Council’s position

I would like to start by clearly stating that I am grateful to Councillor Bastiman for entering into debate with me and for the clear and scrupulously courteous tone of his correspondence. However, it must be said that in doing so, prima facie he has conceded that the policy of some SBC Officers in ignoring previous correspondence was wrong.

Both statements above have a number of inconsistencies as follows:

1. I am delighted to read that I am not designated as “vexatious” within the meaning of the policy. However, this then begs the question how can SBC then use the unsubstantiated position that I am “vexatious”, to justify withholding FOI requests and refusing to respond to correspondence from me?

2. Understood.

3. Councillor Bastiman seems to concede that contrary to the SBC FOI determination above, the NYE has never stated that its collective aim is to cause “nuisance and disruption” to SBC. The NYE’s stated objective from its website home page is: “The North Yorks Enquirer is an internet news magazine covering local, regional and some national news. It provides a forum for citizen journalists working in the public interest to expose wasteful spending, malpractice and corruption in authorities around North Yorkshire and beyond”. Public bodies are under an obligation to act openly, to act for the public benefit and to submit to scrutiny by journalists and the public alike. So the NYE’s objectives are entirely lawful and SBC has a duty to support them.

4. None of the examples of vexatious conduct specified in the policy apply to me and I have hardly any contact with SBC Councillors or employees. I have submitted one FOI request in the last year to SBC.

5. SBC is unable to specify one example of any Councillor or SBC employee that is alleging harassment, distress or nuisance by myself. No SBC Councillor or employee or SBC has made a complaint to the NYE. Nor can SBC provide any example of me disrupting or preventing any Council service from being provided, although they have been asked to do so.

Are they, too, alleged by SBC Directors to be causing nuisance, disruption to service delivery and distress?

6. The ICO notice is two and a half years old and relates primarily to one local NYE correspondent covering one highly emotive local issue (demolition of the futurist), which I did not participate in and which is now closed bar the bulldozing. The Information Commissioner does not indicate in his judgment that it should be applied to every FOI request received by anyone that writes for the NYE in perpetuity. Nor does he state that this should be used to justify ignoring correspondence from NYE contributors or corresponding with them anonymously. It is important to remember that while a particular FOIA request may be deemed “vexatious”, there is no legal provision for deeming a particular individual requestor or group of requestors “vexatious”.

In my opinion, extending this notice to use it as an indefinite collective punishment against anyone that contributes to the NYE on any subject is excessive and unjustifiable. It cannot be justified by the ICO Decision Notice. Particularly as this policy has been used to supress information that Councillors are entitled to know on the interception of Councillors e mails as stated above.

7. I have not submitted FOI requests to SBC for years, so my FOI history is in fact innocuous. I am a freelance citizen journalist. I act in isolation from other NYE contributors covering specific topics. I do not participate in meetings or discussions with any other NYE contributors of any sort, or in the management of the NYE. I think it is wrong for SBC to hold me collectively responsible for the actions of other people that in fact I have no responsibility for.

8. The definition of a Pressure Group is: “Advocacy groups (also known as pressure groups, lobby groups, campaign groups, interest groups, or special interest groups) use various forms of advocacy in order to influence public opinion and/or policy. They have played and continue to play an important part in the development of political and social systems. Groups vary considerably in size, influence, and motive; some have wide-ranging long term social purposes, while others are focused on and are a response to an immediate issue or concern. Motives for action may be based on a shared political, religious, moral, health or commercial position. Groups use varied methods to try to achieve their aims including lobbying, media campaigns, publicity stunts, polls, research, and policy briefings. Some groups are supported or backed by powerful business or political interests and exert considerable influence on the political process, while others have few or no such resources.“

The NYE is an internet newsmagazine, covering multiple local issues. It is not a pressure group and does not cover any one single issue in any campaign.

Pressure Groups are an entirely lawful form of organisation formed by citizens to address one specific issue, at local or national level. There is no prohibition against pressure groups in the Freedom of Information legislation.

I am not a member of any pressure group or political party. I resent being falsely categorised as such by SBC Officers and then held responsible for the actions of other people that have nothing to do with me.

9. I am not on social media and cannot therefore have attacked anyone on it. SBC has been unable to specify any example of me attacking SBC members or Councillors. I do not follow the NYE Social Media in any way. I deny attacking Councillors or members although I do exercise my right of free speech to lawfully criticise SBC Officers, policies and Councillors. So do Private Eye and the Scarborough News.

This is a lawful act. In the 1993 case of Derbyshire County Council -v- Times Newspapers, the Law Lords ruled that it was vital that the public were free to criticise public bodies:

“It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism.”

The NYE is a local internet news magazine that covers a wide range of issues including news, crime and politics across several local authorities in North Yorkshire and beyond. Many Councillors and local citizens use it as a vehicle to publish their views on a wide range of local issues. In no way can it be described as a “pressure group”. Private Eye also exposes misconduct locally and nationally and because of the similarity of the NYE’s role locally, has covered many of our stories on Scarborough Borough Council. However, no-one would ever dream of calling Private Eye a “pressure group”

The NYE has never stated its purpose is to cause  “nuisance and disruption” to SBC. Councillor Bastiman conceded this in his correspondence with me, above. It is quite wrong for SBC to concoct statements it claims are made by the NYE, which have no basis in fact, as a reason to withhold responses to FOI requests.

The NYE is not a campaign group. It does not cover one single issue or political campaign. It is an internet news magazine covering a wide range of local issues across a wide range of public bodies. It allows local people from a wide range of political views contribute to the NYE on a wide range of topics.

I abide by the NUJ Code of Conduct and the NYE allows a right of reply to anyone that feels aggrieved about anything that has been written there. No one from SBC has ever tried to utilise the NYE complaints process. In response to complaints from SBC. In 2013, I asked SBC to particularise similar allegations about our coverage and it chose not to do so. Similarly the BBC also asked for a justification of its complaints and SBC was unable to comply. SBC has been unable to specify any example to support its assertion of offensive, accusatory, defamatory, offensive, sarcastic, accusatory and partial material by myself.

The wider issues of SBC policy against some NYE contributors

Public bodies are under an obligation to act openly, to act for the public benefit and to submit to scrutiny by journalists and the public alike. To hold public bodies to account, journalists and members of the public need to have access to information from those bodies, both for:

1. Informing the public generally about the organisation and the benefits it provides, which is in accordance with the objectives of most organisations and its management.

and

2. Holding public bodies to account in cases of inefficiency, incompetence and/or misconduct. Which is in accordance with the public interest, but completely contrary to the self-interest of some officers and all senior managers/officers of a public body.

This is entirely appropriate and a constitutional safeguard that all public bodies have a duty to comply with in the public interest. Without open access to this information, journalists can’t exercise effective scrutiny over public bodies and inform their electorate.

By inventing pretexts to ignore correspondence and FOI requests from certain individual journalists that ask embarrassing or difficult questions, SBC Officers are undermining everyone’s right to have:

• A free and effective press.
• Access to information the public is entitled to know.
• A Council, Councillors and Council Officers that are open and properly scrutinised by a free press.

In my view this is wrong and unacceptable in a public body.