Paul Carlier v Information Commissioner & Anor

Following the Financial Conduct Authority (FCA) APM (Annual Public Meeting) I submitted a series of Freedom of Information (FOIA) requests to The FCA. Each FOIA: 1. quoted a specific representation made by an FCA executive from transcript of the event. 2. Attached and referred to hard documentary evidence that challenged or contradicted the representation made. and 3. Requested information from the FCA to explain why The FCA executive’s representations were so contrary and/or contradictory to the hard evidence I had enclosed and referenced.

Serious purpose and value

The FCA acknowledged that disclosure of the information requested would be of reasonable value to the public as it may increase understanding of the FCA’s supervisory approach and decision making in relation to Blackmore Bonds.

The burden imposed by the requests

The FCA referred to the ICO guidance which notes that “it is common for a potentially vexatious request to be the latest in a series of requests submitted by the individual. The greater the number of requests received, the more likely it is that the latest request is vexatious.”.

The FCA said that during the period 17 January 2022 to 28 November 2022 the complainant has submitted to the FCA 12 Freedom of Information requests. One of these, includes the 7 requests submitted separately within less than a week which the FCA aggregated and responded on 14 November 2022 (which are the 7 requests which are the subject of this Notice).

In addition, it said that over half of the requests submitted between January and November 2022 were received in a period of just over 3 months (15 July to 18 October 2022). It said that this is a substantial inflow of requests in such a short timeframe.

Furthermore, it said that the complainant had requested internal reviews be undertaken in relation to 9 of the 12 first stage decisions issued (including the 7 which are the subject of this Notice but amalgamated and dealt with as ‘one’ request).

The FCA said that the cost, time and burden of fulfilling the requests represents a disproportionate allocation of the FCA's resources. It said that the purpose of FOIA is to promote public access to important information. It argued therefore that it is important that public authorities are capable of processing requests made under FOIA to enable such access. On examining the volume and frequency of the complainant’s requests, it is clear that he has submitted multiple requests before. This includes other correspondence regarding issues he has raised, and that have been addressed previously, outside of FOIA.

It summarised that considering the number of FOIA requests together, FCA has concluded that a vast amount of resources is being utilised on processing them. It said that this contributes to an unmanageable workload for the FCA’s Information Disclosure Team, which in turn impacts the team’s ability to facilitate the disclosure of publicly valuable information. The ICO states that “the collective burden of dealing with the previous requests, combined with the burden imposed by the latest request, may mean a tipping point has been reached, rendering the latest request vexatious.” In view of the factors considered above, the FCA said that the 7 requests which are the subject of this Notice meant the “tipping point” had now been reached.

Distress and harassment

FCA said that applications made under the FOIA must generally be considered ‘motive-blind’. However, as the ICO guidance makes clear, the potential motive behind the request is relevant when considering whether it is vexatious under section 14(1). The FCA therefore also considered the wider context to the FOIA requests and other correspondence. In particular, it referred to a letter dated 21 December 2021 to the complainant from the Head of Technology, Resilience and Cyber which addressed as far as it could the FCA’s supervisory approach to Blackmore Bonds. This letter explained that the FCA is bound by the strict confidentiality restrictions that apply under section 348 of the Financial Services and Markets Act 2000. These restrictions limit the scope of any responses, and the amount of information, the FCA can disclose, whether this is under the FOIA, the Complaints Scheme, or as business as usual, regarding any actions the FCA may (or may not) have taken in respect of any information it receives in carrying out its regulatory functions.

It said that in terms of the points and assertions made in the 7 requests considered here, these contain issues the complainant had raised as part of a long series of correspondence from the complainant about matters relating to the FCA’s approach to Blackmore Bonds. The FCA considers that the complainant may be using FOIA to further matters that have already been considered and addressed in December 2021, and subsequently by the then Executive Director of Enforcement and Marketing in February 2022, and that the relevant issues raised in the 7 requests are unlikely to add anything of substance to the information already provided to the complainant on this subject.

It therefore summarised that the 7 requests considered are not serious requests for information but rather amount to a vehicle for the complainant to make unfounded accusations against the FCA and its staff.

The FCA is also of the view that the complainant is further seeking to overburden and harass the FCA by raising issues that have previously been considered outside of FOIA. Looking at the requests in the round, and against the backdrop of the complainant’s other FOI requests and other correspondence, it concluded that the purpose of the requests are to overburden the FCA and cause harassment and distress to staff.

Holistic approach

The FCA reasoned that whilst each of the requests have some value, the value is limited given the issues raised have already been addressed. Taking the requests as a whole, particularly examining the contents of the Internal Review request, it considers it is clear the complainant is continuing to challenge the FCA for an alleged failure to act or wrongdoing without any clear and logical basis for doing so. Furthermore, many of the requests are predicated upon these baseless allegations and request explanations linked to alleged activity within the unfounded allegations themselves, as opposed to any actual information the FCA holds.

The FCA took into account the fact a vast amount of resource is being utilised in processing the requests (when also considered alongside other FOIA requests and other correspondence) and the fact it considers the purpose of the requests is to overburden and harass the FCA, and to distress staff. It therefore weighed the value of the requests against the burden, motive and harassment to the FCA. It concluded that the requests are a disproportionate, manifestly unjustified, inappropriate or improper use of the FOIA because the burden, motive and harassment outweigh the serious purpose and value.

In this case the Commissioner agrees that there is a serious purpose and value in the requests as disclosure may increase understanding of the FCA’s supervisory approach and decision making in relation to Blackmore Bonds.

However, the FCA has said that from 17 January 2022-28 November 2022 the complainant has submitted 12 FOIA requests. However it counted the 7 requests which are the subject of this Notice as one request. Therefore in actual fact 18 FOIA requests were submitted during this 10 month period. This amounts to nearly two requests per month. Given section 10 FOIA allows a public authority 20 working days to respond to a request, this clearly demonstrates the overlapping nature of the complainant’s FOIA requests. In particular the practice of submitting new FOIA requests before the FCA has had an opportunity to respond to those already made.

Considering the breadth of the FOIA requests, the number made along with other correspondence outside of FOIA, the Commissioner does consider that the tipping point has now been reached due to the collective burden imposed.

The FCA has referred to two letters in which it has attempted to address the complainant’s concerns regarding Blackstone Bonds in November 2021 and February 2022 and it would appear that the complainant is attempting to pursue these matters now under the guise of FOIA requests which do appear to be accusatory towards FCA staff.

Taking a holistic view of this request, the Commissioner is satisfied that whilst there is a serious purpose and value to the subject matter of the requests, due to the collective burden, overlapping nature and tone of the requests, on balance the Commissioner considers that the FCA correctly categorised the requests as vexatious under section 14 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…’ (paragraph10).

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.

First, the present or future burden on the public authority may be inextricably linked with the previous course of dealings. Thus the context and history of the particular request, in terms of the previous course of dealings between the individual requester and the public authority in question, must be considered in assessing whether it is properly to be characterised as vexatious. In particular, the number, breadth, pattern and duration of previous requests may be a telling factor.

As to the number, the greater the number of previous FOIA requests that the individual has made to the public authority concerned, the more likely it may be that a further request may properly be found to be vexatious. Volume, alone, however, may not be decisive. Furthermore, if the public authority in question has consistently failed to deal appropriately with earlier requests, that may well militate against such a finding that the new request is vexatious.

As to their breadth, a single well-focussed request for information is, all other things being equal, less likely to run the risk of being found to be vexatious. However, this does not mean that a single but very wide-ranging request is necessarily more likely to be found to be vexatious – it may well be more appropriate for the public authority, faced with such a request, to provide advice or guidance on how to narrow the request to a more manageable scope, failing which the costs limit under section 12 might be invoked.

As regards the pattern, a requester who consistently submits multiple FOIA requests or associated correspondence within days of each other, or relentlessly bombards the public authority with e-mail traffic, is more likely to be found to have made a vexatious request.

Likewise, as to duration, the period of time over which requests are made may be significant in at least two ways. First, a long history of requests e.g. over several years may make what would otherwise be, taken in isolation, an entirely reasonable request, wholly unreasonable in the light of the anticipated present and future burden on the public authority. Second, given the problems of storage, public authorities necessarily have document retention and destruction policies in place, and it may be unreasonable to expect them to e.g. identify whether particular documents are still held which may or may not have been in force at some perhaps now relatively distant date in the past.

…the emphasis should be on an objective standard and that the starting point is that vexatiousness primarily involves making a request which has no reasonable foundation, that is, no reasonable foundation for thinking that the information sought would be of value to the requester or to the public or any section of the public… The decision maker should consider all the relevant circumstances in order to reach a balanced conclusion as to whether a request is vexatious.

 Abusive or aggressive language

 Burden on the authority – the guidance allows for public authorities to claim redaction as part of the burden

 Personal grudges

 Unreasonable persistence

 Unfounded accusations

 Intransigence

 Frequent or overlapping requests

 Deliberate intention to cause annoyance

…sometimes part of the problem is that the requester’s correspondence is hard to follow and you are therefore unsure what, if any, information they are requesting. Then, you might want to consider whether you could more appropriately resolve the problem by providing the requester with guidance on how to reframe their request.

This approach may be particularly helpful for lengthy correspondence that contains a confusing mixture of questions, complaints and other content, or is otherwise incoherent or illegible.

If the problem is that you are genuinely unable to determine what information the requester is seeking because of how the request is phrased, you should consider the provisions of section 1(3). Under that section, where you reasonably require further information in order identify or locate the requested information, you are required to inform the requester of the problem so that they have the opportunity to provide further details. In these circumstances, it makes sense to also consider what advice and assistance you could provide to overcome the problem.

Offshore money, huge fees, suspicious payments and a phantom head of the KGB- just some of what a group of ordinary British savers discovered where the 346 million find they had invested in collapsed. Each year, a billion pounds is lost in failed investment schemes, Panorama tells the story of one of them and follows investors as they try to unravel the truth about the Blackmore Bond, a Manchester-based scheme and challenge the regulators they believe failed them. (Footnote: ¹ )

More than 2,000 vulnerable pensioners lost a combined £46m. At all times since March 2017 I have done nothing but seek to report the offences in the first instance, believing I was helping the FCA and the victims by preventing the scam, fraud and Ponzi scheme, and subsequent to that have only ever sought to help the victims establish truth and fact and secure the justice and remedy owed.

The value of the requests;

The burden on the FCA;

The motive behind the requests;

The harassment of, and distress to, staff; and

The overall balanced judgement as to whether the requests were vexatious.

…Mr Carlier has made a significant number of requests under the FOIA over an extended period. Since 2015, Mr Carlier has made 24 separate requests under FOIA, of which 12 were made between 16 January 2022 and 28 November 2022. The 7 Requests under appeal in this case are reflected as one request in those figures. Although the FCA has, on occasion, provided a single response in relation to multiple of Mr Carlier’s requests, the FCA has still considered each request individually…Of these 24 requests, Mr Carlier has requested internal reviews of 17 requests…and of those he has appealed 2 internal review decisions to the Information Commissioner.

…half of the FOIA requests submitted between January and November 2022 were received in a period of just over 3 months (15 July to 18 October 2022).

Mr Carlier has made repeated requests in relation to similar themes…5 requests were received relating to Lloyds Bank, 7 relating to Blackmore, 3 relating to Interest Rate Hedging Products. This is part of a pattern of repetitive communications with the FCA about the same topics, which I address further below.

Responding to Mr Carlier’s correspondence has required a substantial amount of the IDT’s resources based on the volume and frequency of the correspondence alone. This contributes to a less manageable workload for the FCA’s IDT, which in turn impacts the team’s ability to facilitate the disclosure of publicly valuable information.

Mr Cross identifies further factors which he says have also contributed to ‘the significant burden on IDT’s resources and have made the processing of Mr Carlier’s requests more difficult, distressing and time consuming’. These include that the requests are often composed of multiple sub-requests and often include attachments and refer to irrelevant matters, which make it difficult to identify the FOIA matters raised. The Appellant’s FOIA correspondence also includes serious allegations of misinformation levelled at FCA officials, as well as what is described as ‘an insistent and inappropriate tone’ which are not appropriate to be received by FCA staff members and which can be burdensome and distressing. We were taken to some examples of these allegations during the hearing. Some requests have been so frequent that they were sent before the time for the FCA to respond to previous requests had elapsed. Mr Cross continues:-

We gave permission for the Appellant to rely on the witness statement of Mr Andrew Agathangelou, who is the founder of the Transparency Task Force and Chair of the Secretariat Committee to the All-Party Parliamentary Group for Fairer Financial Services. Mr Agathangelou did attend the hearing but the FCA had no questions for him. His statement says that:-

The Appellant also submitted two witness statements which elaborated on his grounds of appeal and took issue with the position of the FCA and the Commissioner.

The Appellant represented himself at the hearing. Neither the Commissioner nor the Council were represented. We explained to the Appellant that the Tribunal had read the background documents in the case, and understood the history of the matter.

The FCA addressed the issues set out in the decision notice in a skeleton argument and orally. The Appellant responded using the same headings in a skeleton argument, and also orally and so we can usefully summarise the arguments as follows.

The FCA accepts there is some limited value in the requests ‘but it is apparent that the requests amount to argumentation and expressions of disagreements with statements made on behalf of the FCA. Rather than being serious requests for information, they are requests for explanations’.

The Commissioner found that there was ‘reasonable value to the public as it may increase understanding of the FCA’s supervisory approach and decision making in relation to Blackmore Bonds’. The Appellant pointed out that the requests ‘were all specific to representations the FCA made at its APM in October 2022 regarding Blackmore Bond’ and emphasised the ongoing importance of the Blackmore Bond issue and the regulatory role of the FCA. He submits that the FCA had accepted that his questions amounted to ‘requests’ under FOIA.

This was the focus of much of the FCA’s case and it is said there are several strands to this issue and that ‘the requests, when seen in the context and history of Mr Carlier’s course of dealings with the FCA, impose a wholly disproportionate burden on the FCA’. Reference is made to the ‘convoluted’ nature of the requests and their length, the amount of time necessary to understand the requests, and the fact that a number of requests were made over a short period of time. The figures cited by Mr Cross are relied upon for setting out the history of requests, and also the wider correspondence between the Appellant and the FCA: ‘The nature of his correspondence – copied to multiple business areas and raising multiple topics – requires time to be spent by different departments liaising with each other internally to allocate and coordinate responsibility’. This is despite the attempts to fully respond to the Appellant and to explain the limits placed on the information that can be shared by section 348 of the Financial Services and Markets Act 2000. The weight of the correspondence has led to diverts being placed on his emails.

The Appellant argues that the ‘number of FOIA requests were proportionate to the number of false and/or misleading representations made by the FCA at the APM…’, and that he has provided information to make them ‘self-explanatory’. He lists the various issues on which he has corresponded with the FCA and points out they do not all concern Blackmore Bond and says that the correspondence is the ‘result of work and investigation carried out by me on behalf of millions of victims of the above, and that I did on an entirely pro-bono basis because I am one of the few people that has the knowledge and industry experience to identify such wrongdoing and investigate it’.

Reconsider the Appellant’s requests afresh on the basis that these requests are not vexatious for the purposes of section 14 FOIA.

The FCA must take these steps within 35 calendar days of the date of this decision, and inform the Appellant of the outcome from taking those steps within the same time period.