(General Regulatory Chamber)
Information Rights
Heard on: 20 February 2025 |
||
B e f o r e :
TRIBUNAL MEMBER DE WAAL
TRIBUNAL MEMBER SIVERS
____________________
STEPHANIE BROWN |
Appellant |
|
- and - |
||
THE INFORMATION COMMISSIONER |
Respondent |
____________________
For the Appellant: Unrepresented
For the Respondent: Unrepresented
____________________
Crown Copyright ©
Decision: The appeal is Allowed.
Background
The Requests
"I am writing in response to your recent and increasing contact with the Trust, including the visits you have made to the Trust's PALs team, to provide a general position as to how we will handle correspondence or contact from you going forwards.
I am sorry that you feel dissatisfied with the care provided to Mrs Brown and I understand that you as a family are grieving her loss, for which I am incredibly sympathetic.
I appreciate that this is not the response you would like from us, but we have now reached the limit of the resources available in terms of responding to and dealing with your complaints and requests. You have made several requests and complaints on the same issues, and I do not believe there is anything further we can say which will resolve the situation to your satisfaction. This is because you have not accepted any of the responses, we have sent so far and further contact on the same matters is unlikely to change the situation or lead to a different response from us to the ones we have already given you.
Your contact with the Trust
From August 2021 to date, the Trust has received and processed the following requests and enquiries from you:
- 19 August 2021 freedom of information act (FOIA) request regarding maintenance issues from Stephanie Brown (592/21)
- 9 February 2022 FOIA request regarding complaints against the Acute Stroke Unit from Stephanie Brown (977/22)
- 4 May 2022 FOIA request for policy documentation from Stephanie Brown (978/22)
- 4 May 2022 FOIA request for names of staff on Acute Stroke Unit from Stephanie Brown (979/22) B92 2
- 5 June 2022 Request for internal review in relation to request 979/22 above from Stephanie Brown and subsequent complaint to the Information Commissioner's Office (ICO). We acknowledge that this was due to a delay in providing the internal review response.
- 4 May 2022 FOIA request for information in relation to discharge procedures on the Acute Stroke Ward from Stephanie Brown (980/22)
- 28 May 2022 Request for internal review in relation to request 980/22 above from Stephanie Brown and subsequent complaint to the ICO (we acknowledge that this was due to a delay in providing the internal review response)
- January - October 2022] Complaint to the PHSO regarding Cardiac Enzymes enquiry, including various correspondence with the PHSO to aid its enquiries16 January 2023 FOIA request for the policy review document from Brian Brown (17364)
- 8 March 2023 Two separate complaints raised by Brian Brown: one in relation to the policy review and the other in relation to allegedly missing cardiac enzyme test results
- 15 March 2023 Contact with the Trust's Therapies team in relation to the discharge planning review 20 March 2023 Contact with Sarah Hayes (Chief Nurse) regarding cardiac enzymes tests
- 21 March 2023 Complaint from Brian Brown regarding the Trust's response to FOIA request for policy review information
- 21 March 2023 Contact with Sarah Hayes regarding a meeting with the Chief Executive held on 13th September 2021, whereby the discharge review was discussed
- 31 March 2023 Two emails to Sarah Hayes
- 4 April 2023 Email to Mark Lam (Chairman) chasing a response to complaints
- 14 April 2023 Email to Mark Lam chasing a response to complaints
- 14 April 2023 FOIA request relating to multi-disciplinary team working with the Acute Stroke Unit from Stephanie Brown (220/23)
- 21 April 2023 Brian Brown attended PALS office
- 26 April 2023 Email from Brian Brown to the PALs team following visit on the 21st
- 16 May 2023 - Brian Brown attended PALs office
- 26 May 2023 Email from Brian Brown to Shahida Trayling (Deputy Chief Nurse) regarding complaint
- 8 June 2023 Email from Brian Brown to Sarah Hayes and Shahida Trayling requesting a meeting
In addition to the above, there have also been various telephone calls and emails to individual staff members, some of whom have had no previous involvement in these matters. The Trust acknowledges that the time taken to respond fully to some of your FOIA requests and internal reviews was not in line with its target. The Trust regrets that it was unable to comply fully with the requests within the respective statutory/best practice timeframes and acknowledges the ICO's observations on this front.
The Trust has spent considerable time and expended substantial resource dealing with the requests and complaints you have raised. This does not include the additional time spent and resources expended in relation to your general correspondence with the Trust and the time we have spent considering how best to handle your correspondence, queries, and requests, including support and advice from our legal advisors.
Overall, this is a significant amount of time, money and resources that have been diverted from the Trust's core public functions as a healthcare provider.
Having regard to ICO guidance on this issue, the quantity of requests and the persistent nature of some of the correspondence has led us to conclude that these requests are having the effect of placing a disproportionate burden on the Trust and the Trust cannot continue to respond to all the requests and correspondence it receives from you without diverting resources from other legitimate requests or other areas of the Trust. This could end up having significant consequences in relation to its public functions and service delivery. ..."
"...
- the history of your interactions with the Trust, as summarised above
- the burden on the Trust and its staff, in terms of these requests and all other correspondence and requests you have sent to it
- the harassment of Trust employees through your continuous requests and correspondence and the distress this causes to those employees; and
- whether the value of the information justifies the disruption and irritation that would be incurred by continuing to comply with your requests."
Request 1
"I am submitting a Freedom of Information request for the following information.
1. Provide a breakdown of the number of complaints received against your CEO since she joined in 2021 required by year & month including what categories these complaints come under.
2. Detail what is the process for dealing with complaints received against your CEO.
3. Are the executive board made aware of any complaints received against the CEO.
4. What action would be taken against the CEO if the complaint was upheld."
Request 2
"I am submitting a Freedom of information request to obtain a breakdown of all the details spent in dealing with a complaint that was originally submitted on 25th January 2021 & which is in our opinion still an ongoing complaint, plus copies of records/results that have not been forwarded to us despite previous requests to do so.
According to a letter received from your CEO following intervention by our local MP of which I am attaching a copy, she claimed that "thousands of hours" had been spend dealing with our complaint. She also claimed that certain documentation/information had already been provided to us, so therefore to confirm this we would like a breakdown of the following.
1. Details of exactly what work was carried out on our complaint, broken down by date & times & what department carried out the work.
2. Details broken down by date of any correspondence sent to us and by whom (if not able to provide a name a department name would be sufficient)
3. According to the letter from your CEO a copy of the discharge review that was suppose [sic] to have been done in September 2021 was completed & sent to us. When this was requested via a FOI request in January 2023 you first claimed you could not find it, then claimed that the person actioned to do it had left before the due completion date which was false & we were then advised it would be completed by April 2023, but we have still not received a copy & so far you have been unable to provide a copy to the PHSO either. If this discharge review has been done as claimed then we would as part of this FOI request require proof it was sent & a copy of this review.
4. We requested details of the Line Manager supervising an OTA Claire Todd & was passed onto PALS to get the name by your department. The letter from your CEO claims the Trust has responded to us on this point so we require proof & a copy of the correspondence from the Trust confirming the name as to date we have never received this information so the letter from the CEO is contradictory.
5. We require as part of this FOI Request a copy of ALL 6 PAGES of the ABL90 Radiometer series test carried out in A&E on 13th January 2021 as w we only received B35 5 pages so there is 1 page of results missing which I can prove as per the attached as you can see the page with the punch holes on the left hand side the sheet is folded over, but no copy of this particular result sheet was ever sent with the other records. I am aware that your CEO has tried to skirt around the issue by going on about oxygen levels while trying to divert from the fact that we require all pages of this ABL90 test. So we just require all 6 pages or an explanation as to why 1 page is missing.
6. We also require a copy as part of this FOI request of the Cardiac Enzyme test results that were done according to the A&E summary that was sent to the GP (of which I am attaching a copy of). The CEO in her letter claims that the Trust has responded fully on this matter, however, this is not the case as the tests that were quoted in a previous letter "Alkaline Transaminase" related to a Liver Function test (which you can clearly see is shown separately as part of the investigations) & a Urea & Electrolytes test "Creatinine Kinase" which relates to Kidney functions are biochemistry tests which again you can see is listed as a separate investigation and are not Cardiac Enzyme tests. I am also attaching a copy of an email from the British Heart Foundation which confirms this & which confirms that a Creatine Kinase (CK) test that would be specific to the heart would be a CK MB. So based on this email from a qualified Cardiac Nurse, the evidence from the A&E summary & your CEO confirming Cardiac enzymes test were done, we require the correct results for the CK MB test that would have been done as part of this cardiac enzyme test or the troponin test result as although you CEO has said this was not done historically it does show as part of the test available to be done on the ABL90 radiometer test sheet in 2021."
Request 3
"... I am now submitting a further FOI request for the following information.
1) As previously advised that a further detailed discussion is held every Thursday around the care and discharge planning which is documented on EPR, so therefore can you please provide me with a copy of this record which would have been recorded on 14th January 2021 for my now deceased Mum Sheila Irene Brown. Please do not refer us back to PALS for a copy of these records as they have been instructed to ignore any contact from us.
2) You have advised that the person ultimately responsible for ensuring the discharge criteria is met is the named nurse looking after the patient, so can you please advise the name of this Nurse. To be clear we already have medical records with individuals names, but as there appears to be more than one Nurse who looked after my Mum, it is not clear which would be the one responsible in this case. As we already have names in the medical records, I do not believe there should be any issue with data protection in providing this name which is needed in order to raise a concern about them to the Nursing Organisation which you are therefore legally obliged to do."
The Trust's Response to Request 1
Question | Response | |
1 | Provide a breakdown of the number of complaints received against your CEO since she joined in 2021 required by year & month including what categories these complaints come under. | This is directed at an individual staff member and is exempt from the FOI process under Section 40 regulation 13 |
2 | Detail what is the process for dealing with complaints received against your CEO. | Complaints against individual staff members would be reviewed by their line manager |
3 | Are the executive board made aware of any complaints received against the CEO | Complaints against individual staff members would be reviewed by their line manager. In this case the line manager of the CEO is on the board. |
4 | What action would be taken against the CEO if the complaint was upheld | This would be actioned through the CEO performance management process. |
"1) The request for information about the number of complaints received against your CEO is not unreasonable, as although this relates to an individual staff member the CEO is not a normal member of staff as she represents the Hospital Trust and I am NOT asking for personal details of individual names who have made the complaints, just the number of complaint received, by year/month and under what categories they fall. You already show the number of complaints received in your hospital per unit via your integrated performance report which is shared with the public on your website so complaints received against your CEO should not be any difference as she is in charge of this hospital which is a public body so she should be accountable to the general public."
"2) I asked what the process was for dealing with complaints received against your CEO which you advised would be for the Line Manager for individual Staff Members to review so bearing that in mind can you please confirm who is the Line Manager for the CEO Nnenne Osuji. Can you also please provide a copy of what the actual process is they then follow when reviewing complaints against the CEO as this does not appear to have been answered in the previous request.
3) Is there a log kept by the executive boards of complaints made against the CEO.
4) Can I have a copy of or details of what is involved in the CEO Performance Management Process."
"Your Freedom of Information request Ref: 009/24
This freedom of information request is refused under s14(1). Please note that further vexatious requests on the same or similar topics will be refused under section 17(6). ..."
a. the Appellant's request for an internal review of the Trust's response to Request 2 of 16 January 2024, in which the Trust had said: "This FOI relates to a complaint which has been responded to fully and which the Parliamentary and Health Service Ombudsman have reviewed and closed."
b. Request 3.
Complaint to the Commissioner
"I do not believe the requests are unreasonable or time consuming to process as it mainly relates to procedures relating to complaints made against the CEO which they have already partly confirmed they hold so they should therefore be able to send copies of these procedures.
The question relating to the actual number of complaints made against the CEO should not fall under data protection as she is the head of a Hospital Trust & all other number of complaints per department excluding the board members is already shown on an integrated performance report shared with the general public on their website. I am not asking for personal details just the number of complaints received against the CEO within a specified time period so if they already have stats for other departments then I am sure that information about the number of complaints against the CEO would be just as easily accessible."
The Decision Notice
a. In isolation, none of the Requests appeared particularly burdensome but when considered in the context of the other requests and follow-on correspondence "from the family", he "can see the cumulative effect of the requests".
b. While the Requests had a value and serious purpose to the Appellant given that they sought details of the care of the Appellant's mother, their value and purpose were reduced as the family had availed themselves of the Trust's complaints process and the complaint had been reviewed by the Parliamentary and Health Service Ombudsman. The Commissioner was additionally mindful that disclosures under FOIA are to the world at large and that in many cases FOIA may not be the correct access regime for information about medical test results and details of personal healthcare.
c. The language of the Requests was not abusive, although they did portray the Appellant's frustration, but nevertheless the volume of correspondence and the family's persistence might affect Trust staff.
d. The Trust only started to refuse requests in reliance on s14(1) FOIA when it became apparent that the Appellant and her family were continuing to submit requests related to their complaint after the Trust's complaint process had been exhausted.
Grounds of Appeal
"This appeal relates to request one in the decision letter only which relates to a request for information about complaints made about the CEO of this Hospital Trust which was refused as being vexatious.
I believe that as complaints data for other departments within the hospital has already been provided without any issue, that data about complaints made against the CEO should be readily available via the same system.
I am not asking for any personal details, just the number of complaints made and the category they fall under. I am aware that this is releasing data against a person, however, I believe that the CEO should be accountable to the general public if complaints are raised against her as her name is already in the public domain.
I also requested details of what the process was for dealing with complaints against the CEO and I do not believe that this would create any additional work to be able to send as any large organisation should have processes documented especially a public organisation such as a Hospital Trust as part of its quality controls. They already have processes for dealing with other complaints, so as a CEO is not above the law they should also have processes for dealing with complaints against them and any other members of the hospital trust board.
I originally made the freedom of information request as a complaint had been made against the CEO which she appeared to deal with herself and ignore. I wanted to clarify if the complaint I made appeared in the data numbers in the month I submitted it. I wanted this data to ensure that the hospital trust is held to account when dealing with complaints and that they are not brushed under the carpet, but that every complaint is taken seriously regardless of any other issues that a complainant my [sic] have with them."
The Commissioner's Response to the Appeal
The Legal Framework
General right of access to information held by public authorities.
(1) Any person making a request for information to a public authority is entitled
(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him.
Vexatious or repeated requests.
(1) Section 1(1) does not oblige a public authority to comply with a request for information if the request is vexatious.
(2) Where a public authority has previously complied with a request for information which was made by any person, it is not obliged to comply with a subsequent identical or substantially similar request from that person unless a reasonable interval has elapsed between compliance with the previous request and the making of the current request.
Determination of appeals.
(1) If on an appeal under section 57 the Tribunal considers
(a) that the notice against which the appeal is brought is not in accordance with the law, or
(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he 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; and in any other case the Tribunal shall dismiss the appeal.
(2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.
Analysis
S14 FOIA
"Section 14 is concerned with the nature of the request and has the effect of disapplying the citizen's right under Section 1(1) The purpose of Section 14 must be to protect the resources (in the broadest sense of that word) of the public authority from being squandered on disproportionate use of FOIA "[10]
"There is no magic formula all the circumstances need to be considered in reaching what is ultimately a value judgement as to whether the request in issue is vexatious in the sense of being a disproportionate, manifestly unjustified, inappropriate or improper use of FOIA."
Burden
Value or serious purpose
Motive
Harassment or distress
Conclusion
a. To inform the Appellant in writing whether it holds information of the description specified in Request 1 and, if that is the case, to communicate all of that information to the Appellant; or
b. If the Trust relies on a claim that any information is exempt information (other than under s14 FOIA) it must within the time for complying with section 1(1) give the Appellant a notice which states that fact, specifies the exemption in question, and states why the exemption applies.
Signed: Judge Foss
Dated: 24 April 2025
Note 1 We understand that although the copy of the email before us is dated 4 February 2024, it was in fact sent on 2 April 2024. We do not understand this fact to be in dispute between the parties, but it is not, in any event, material. [Back]