Case Reference: FT/EA/2025/0039
Information Rights
Decided without a hearing
Before
JUDGE SOPHIE BUCKLEY
MEMBER MIRIAM SCOTT
MEMBER NAOMI MATTHEWS
Between
PHILIP BREAR
Appellant
and
THE INFORMATION COMMISSIONER
Respondent
Decision: The appeal is dismissed.
REASONS
Introduction
This is an appeal against the Commissioner’s decision notice IC-320769-C0L7 of 29 November 2024 which held that the Lancashire and South Cumbria NHS Foundation Trust (the NHS Trust) was entitled to rely on section 14(1) of the Freedom of Information Act 2000 (FOIA).
Background to the appeal
There is a significant amount of dispute between Mr. Brear and the NHS Trust as to the factual background to this request. This dispute concerns not only what happened, but whether what was done by Mr. Brear or the NHS Trust was appropriate or justified. It is not necessary for this tribunal to make detailed findings of fact on all the events that have occurred since May 2021. Nor is it our role to determine whether those actions were lawful or justified.
This section of the decision is intended to be a neutral summary of what happened over that period. It is primarily a high level summary and is not intended to be a comprehensive or definitive account of events. It was necessary to set out the course of dealings arising out of Mr. Brear’s his removal as a Governor in more detail.
The public authority is an NHS foundation trust established under the National Health Service Act 2006. They are required to have a Council of Governors. The Trust’s Governors, through the Council, have a number of statutory powers and responsibilities, including the appointment of the Trust’s Chair, and the removal of Governors.
Mr. Brear’s engagement with the NHS Trust began in May 2021 when he and his wife, Janet Clitheroe, sought information about the procurement process followed by the NHS Trust in appointing Verita to investigate in relation to friends of theirs who had positions at the trust. This involved a number of information requests by Ms Clitheroe, a complaint to the Commissioner, an appeal to the First-tier Tribunal ending with an unsuccessful request for permission to appeal to the Upper Tribunal in December 2023.
Mr Brear was elected as a Governor of the NHS Trust and his appointment began in February 2022. In February 2022 a recruitment process for the appointment of the chair of the NHS Trust was in progress. Mr Brear had what we accept were genuine concerns about the process, which was overseen by the Lead Governor, and about what he saw was a conflict of interest in relation to the Lead Governor as a result of his knowledge of one of the candidates for the role of Chair.
In March 2022 there was a review by Hempsons solicitors of the recruitment process. Mr. Brear has concerns about the value and independence of this report.
It is not necessary to set out in detail what occurred in between February 2022 and about May 2022, either in relation to Mr. Brear’s concerns about the conduct of the NHS Trust or in relation to the NHS Trust’s concerns about Mr. Brear’s conduct, but it led to the commissioning of two reports. The Good Governance Institute (the GGI), an organisation about which Mr. Brear raises a number of concerns, was commissioned to conduct (i) a formal investigation relating to the council of governors and (ii) a review of the appointment process.
The formal investigation report included, amongst other findings, substantial criticisms of Mr. Brear. In relation to the report Mr. Brear raises a number of concerns about the evidence base, the conclusions reached and GGI itself. The following extract from a later letter is a reasonable refection of his position on the conclusions in the GGI report:
I much regret and have unequivocally apologised for the upset I caused in February and March last year, when challenging the apparent integrity of the chair selection process. Whilst I do not agree with GGI's methodology or conclusions, I do accept that some parties found the persistence and focus of my (virtual/electronic) communication style unexpected and uncomfortable.
[pB424 of the bundle]
As a result of that report, Mr. Brear was suspended in August 2022.
On 15 September 2022 Mr. Brear wrote to the Governors and apologised to anyone who was distressed by his communication style during the chair selection process and stated that he found it necessary to adopt an ‘increasingly challenging and direct communication style, as my and others’ concerns were dismissed’.
Mr. Brear was removed as a Governor following a meeting of the Council of Governors on 27 September 2022. The removal was overseen by the Lead Governor and voted on by the Governors. Mr. Brear asserts that both the suspension and the removal were wrong and that the process was flawed in a number of fundamental ways. He asserted that he had the right to have the removal referred to arbitration under the NHS Trust constitution. The NHS Trust disagreed.
On 1 November 2022 David Fillingham took up his role as the new Chair of the NHS Trust. He requested a review be undertaken of all the issues raised by Mr. Brear to seek assurance that they had properly been considered (the ‘desktop review’).
In November 2022 Mr. Brear stood, unopposed, and was re-elected as a Governor.
On 20 December 2022 the Governors voted to remove Mr. Brear as Governor. Mr. Brear also considers that decision was wrong and the process fundamentally flawed.
Course of dealings arising out of Mr. Brear’s removal as a Governor
Mr. Brear wrote to the Chair’s executive assistant/the Chair on 20 and 23 December 2022 raising concerns about the fact and the process of his removal.
In a second email on 23 December 2022, he made a subject access request, which he said was in order to facilitate a formal complaint about his removal and a multipart FOIA request for copies of all the documentation associated with the appointment of GGI, engagement between GGI and board members, invoices/charges by GGI and other information.
On 2 January 2023 Mr. Brear filed an interim judicial review application to the administrative court challenging his removal as a governor.
On 4 January 2023 the Chair responded to Mr. Brear’s request for a meeting, offering to meet subject to certain conditions. He also set out some background and explanation for the decision to remove Mr. Brear.
Mr. Brear responded on 5 January 2023 stating that he considered that a meeting under those terms was not worthwhile and reiterating and/or raising a number of concerns about the decision to remove him and the NHS Trust’s refusal to engage in a dispute procedure/independent arbitration.
On 10 January 2023 Mr. Brear wrote to the Company Secretary, Joanne Sandham, stating:
I have today received the attached (amended) Statement of Candidates from Mi Voice declaring the correct result of the recent governor elections, for the first time, showing my successful nomination as an LSCFT governor being formally declared as of 10/01/2023 and as per the Constitution.
According to the election rules in the Constitution my election does not take effect until the date prescribed by the Trust for the appointment of the (8) 2023 governors, and it then runs for three years. This is evident from all current governors published appointment and expiry dates and the wording of the Constitution in terms of when the election has effect.
I wish to attend the forthcoming new governors induction event and thereafter act as a public governor for the Central Constituency, from the prescribed date, as elected under the Constitution and operating as prescribed by the Constitution.
It is apparent from Mi Voice explanation of their original error excluding' me from the Statement of Candidates that they were misinformed by the Trust about my status, the status of the Trust Constitution and in what circumstances the election dates could be changed. This, I believe, is indicative of the Trust's unfounded prejudicial disposition towards having 'challenging' governors and a general carelessness in the interpretation of the Constitution.
…
On 10 January 2023 Mr. Brear sent a further email requesting all documentation associated with the Council of Governor’s meeting on 20 December 2022, in which the removal vote took place, raises queries about the disappearance from the website of the documentation relating to the meeting on 27 September 2022, and requesting the documentation relating to an ‘in camera’ meeting at the beginning of September.
On 17 January 2023 Mr. Brear wrote to Mr. Fillingham raising various issues relating to his removal as a governor. The letter began ‘I am going to assume I am not invited as a governor to Thursday's meeting, but on what basis remains unresolved. It is my wish to attend, as a governor. I will not attend unless invited.’
On 18 January 2023 Mr. Fillingham wrote to Mr. Brear confirming that the decision had been taken on 20 December 2022 to remove him as Governor and confirming that Mr. Brear ‘was therefore not a Governor of the Trust and not eligible to participate in Council of Governor meetings.’ Mr. Fillingham confirmed that he had commissioned a review to be undertaken and that he would share the report with Mr. Brear. The letter concluded ‘I wish to bring this matter to a close in order that we can move ahead with the work of improving the Trust's services. As you have issued legal proceedings may I ask that all future correspondence are directed through the appropriate legal channels’.
Mr. Brear emailed Mr. Fillingham on 18 January 2023. He stated:
As the public head and decision maker in these matters, about a Member and a Governor, it is appropriate I write to you.
You are mistaken in your assertions, I presume because you are mis-advised.
…
I shall, however, take your response as 'final' but disagreed and add it to the JR.
You announced a review of my claims in November. I would expect to be contacted and involved to some degree; I would expect an independent and capable party to be appointed. This sounds close to independent arbitration, yet you refuse to allow it. I have previously asked for an independent review, that was refused by David Eva. It appears you too wish to avoid the 'binding' or authoritative outcome I have been calling for, since March last year.
With respect, you should realise I have been trying to give you a route out of this debacle for nearly three months; this is not of your making unless you choose to make it so. You appear determined to believe there can be only one outcome, my 'disappearance’ from Trust affairs. That is not going to happen.
The process of 20/12/22 was defective, as were the GGI investigation and the process of 27 /9/22. These will be set aside along with the other matters I am challenging.
It is farcical to suggest the Trust has been acting in good faith at all times. The Tribunal papers make that clear; last year's events confirm it. It has been on a misguided but deliberate course of deceit and obfuscation, a culture and ethical failing at Board level, for three years, managed by Ms Martin on behalf of Mr Eva and Ms Donovan, with other directors foolishly compromised by their actions and inactions. Their failings may not be as grave or apparent as others now reaching the media, but that is only because they are still 'sub judice'. I will follow the legal processes until they are concluded and the outcomes endorsed by judges
As I am confident the court/tribunal will declare, it was not my "behaviours (which) impeded the effective working of the Council and of Trust staff", or I who "acted in a manner detrimental to the interests of the Trust." Every intervention I made from January 2022 was first made discreetly and politely, designed to avoid disruption but ensure due process. It was the refusal to act properly and the escalation by others that created each and every 'issue' which did distract, upset or otherwise disrupt the operation of Council and Trust staff, who knew I was raising 'defects' their senior managers wanted them to conceal.
I too wish to see this matter brought to a close, with you in the chair, which is where this all commenced. The Trust needed an experienced, motivated and challenging chair. That was not going to happen until I politely intervened and was rudely told to 'get back in your place’
I again urge you to recognise where the failings lie and why this has become the enduring issue that it has - the Trust will not admit its mistakes, it has tried to cover them up, it is still trying to cover them up. You should not be party to that.
Independent arbitration resolves this 'in one fell swoop'.
On 9 February 2023 Mr. Fillingham replied, indicating that the review was ‘a straightforward factual check to be carried out by Trust staff of all documented issues you raised whilst still a Governor. The aim is to ensure that any substantive concerns documented as being raised by you whilst a member of CoG, whether about procedural, quality or financial issues, have been appropriately reviewed and/or addressed. So to clarify, it is not an independent review akin to arbitration and does not cover the process of your removal as a member of the CoG. The Trust’s position on arbitration and having a further independent review re-examining the issues remains the same’. He repeated his offer to meet with Mr. Brear.
On 16 February 2023 Mr. Brear replied. He raised a number of issues about the proposed review and reiterated/raised a number of other concerns. Mr. Brear wrote again to Mr. Fillingham on 6 March 2023. He stated:
…
As you too have personally refused to allow independent arbitration of your and other decisions, have effectively set aside the requirements and obligations of the Constitution, have persisted in making decisions and taking actions to my detriment outside the provisions of the Constitution, have no option other than to apply for a judicial review of your decisions in addition to the pending application to review your predecessor's.
If I do not hear from you with concrete and different proposals to your current position within the next three days, by Thursday lunchtime, I shall submit a further letter before claim to Capsticks before the end of this week
This will seek a formal explanation of your decisions, including but not limited to how still disputed and unsettled issues arising from and only applicable to my first period as an elected governor, if they are applicable at all, are applicable to my second election; how those decisions were made absent any due process and whilst a putative review of their validity was supposed to be underway, commissioned by yourself and which has still not reported after nearly 5 months: and the method and the nature of the recent adjustments' to the Constitution designed solely to prevent me returning to my role as a governor.
On 20 February 2023 the NHS Trust responded to Mr. Brear’s FOI request made on 23 December 2022 in which he had requested documentation relating to the appointment of GGI.
Mr. Fillingham responded to the email of 16 February on 7 March 2023. He reiterated the Trust’s position. He stated:
Whilst I am acknowledging receipt of your e-mail, and reiterating the Trust's position regarding the points you have raised, I would like to inform you that I will not be replying to any further correspondence if it only raises issues which you have previously highlighted.
The option of meeting with me remains open to you, subject to that meeting not prejudicing any legal processes that you may wish to commence.
Mr Brear replied the next day on 8 March 2023, stating:
Your final paragraph represents a change in your position.
If you are prepared to meet and discuss across the range of issues in dispute and their cause and potential resolution without prejudice to "any legal processes (I) wish to commence", or indeed have commenced, then this reflects the position I have been advocating since your appointment.
If you agree this is the position, then we should meet at your earliest convenience.
…
I don't believe it will take more than 30 minutes or so for us to establish whether there is any value in pursuing a resolution outside court proceedings/independent arbitration, but if so, then further arrangements can be made.
Mr. Fillingham replied the same day indicating that his willingness to meet did not represent a change in position and that the proposed meeting was solely to allow of a better mutual understanding of each other’s views. Mr. Brear replied indicating that he was interested in a meeting and asked for Mr. Fillingham’s secretary to suggest some options.
On 6 April 2023 Mr. Brear emailed the NHS Trust chasing up a response to his earlier FOI request for information surrounding the failed chair selection process. On the same date he emailed chasing a response to an earlier request to be allowed access to the Trust’s public register of members.
On 6 April Mr. Fillingham also shared the outcome of the desktop review with Mr. Brear. That review lists what it says are the substantive concerns identified by Mr. Brear and other governors between 20 February 2022 and 31 October 2022 and sets out the action taken. It included the issues ‘independence of the [GGI]… and ‘process surrounding the removal of Phil Brear including the Board’s power to restrict, and CoG quoracy.’ The review was undertaken by the Company Secretary, Jo Sandham.
Mr. Brear responded to Mr. Fillingham on 7 April 2023. He expressed ‘incredulity’ at the individuals who conducted the review, who he said were not independent or objective because they had acted improperly. He stated:
I am sorry if my tone appears to be one of sarcasm and personal attacks. But you are presiding over a whitewash, damaging to me and to the Trust, which has taken 5 months to undertake and conclude, incorrectly. So let’s just get back on the legal track.
I must assume there is a longer version of the Review and you have probably read it; I would like to see the full Review report/presentation/documentation, including its terms of reference and all internal correspondence and communications around its undertaking, construction, communication and conclusion, including any reports to directors or other parties.
Please treat this as a SAR (and/or an FOl for those parts not relating to me) for the disclosure of all the 'Review' documentation, if that is necessary.
Mr Brear attached a commented version of the report. He also stated in the letter as follows:
Needless to say, on every issue they have simply sought to protect their own interests as the authors and owners of many of these process failures, misrepresenting issues and contradicting themselves and events, rather than addressing the real interests of the Trust. If, as Chairman, you want to be misinformed and misled because it is more comfortable for you, then I have been wasting my time delaying issues and giving you the opportunity to step away from your predecessors' mistakes. If you read nothing else, read the penultimate item in their column 3. So keen and willing are your two colleagues to mislead you, they cite the new Governance Code provision that Trust's may lower the 75% 'governor removal threshold'. In the best traditions of the Trust, and consistent with other communications, they do not bring to your attention the next sentence, recommending an independent assessor of such contentious decisions. The new Code recommends independent arbitration of contentious decisions. They are hiding it, you are refusing it. This is a 'reportable event' under Schedule A, but they misrepresent it to you.
Just for clarity, in terms of my removal being contentious, four governors spoke up for me, but such was the level of intimidation and hostility, three went on to abstain and the fourth, a staff governor 'voted with the Board' as a secret vote was refused. Two other governors had indicated they would speak up for me but also 'went with the flow' on the day. The six of us believed I would not be removed until David and others made clear the event was to be nothing less than a 'Star Chamber' exercise where my letter would be discounted, my two written apologies misrepresented, and dissent would not be tolerated. Other governors had reported being telephoned by Phil C and Ken well before we reached this stage 'to help them understand the situation'. That's how reliable a process it was.
As a consequence we will now enter a very busy period, at your choice:
We are appealing the Information Rights Tribunal decision which agreed the Trust had illegally withheld documents around the Verita Review but did not order further disclosure, as it is blindingly obvious that case law has been misapplied and key documents have been and are still being withheld (no emails exist, no documents about ZC's complaint exist etc etc). I shall also be submitting a further FOl application to the Trust reflecting the additional information eventually disclosed by the Trust during that two year process, in an effort to properly examine and illuminate the mis-management of that event and again, in due course, invite you to review the propriety of what took place, all managed by Ursula.
We also have the Interim Injunction application pending, which I am now chasing up with the Administrative Court as an 'urgent application'. This will lead to one or two JRs (David's and your own) or a very long referral for an Independent Arbitrator to process. All your own choice, spending more scarce NHS money and executive time defending the (largely) indefensible. Again, the SAR material amplifies Ursula's role and interest in David's 'decisions' and how the Trust was keen to remove me within the first month.
Whilst the recent SAR disclosure is 'more of the same' in terms of the Trust's desperation to 'cover its tracks' when executive wrongdoing is identified, I shall provide a substantive response and a request for a formal review of the 1200 pages as quickly as possible, but the package illustrates equally concerning levels of incompetence and conceit amongst your colleagues. There is a firm belief amongst your colleagues that they are unaccountable to anyone, have no wish to correct mistakes and a propensity to mis-state and fabricate events where distortion is impractical or insufficient.
Elements of LSCFT management are well and truly corrupted. (I assume I need not again explain the wider and intended meaning of this word in this context, and you won't make the same narrow minded assumptions as others). Whilst you do not have the time to plough through what your staff have padded out into thousands of pages of correspondence (hundreds of duplicates, dozens of 'one line' pages), I do, and I am both delighted and disappointed by what has just been provided. There is layer upon layer of evidence of a dysfunctional organisation, one which has already been found to be willing to improperly conceal documents from public scrutiny (Part 2) and breach the FOlA, and continues to do so under your leadership.
We also have the NHSE FOl showing David misled CoG, staff, stakeholders and the public about Caroline's departure. Chris was present at the CoG meeting and 'sang along' with David's fabricated depiction of events to governors, including David's denial of my direct questions about the accuracy of the HSJ version of events, the implausibility of his statements, and the arrangement having all the hallmarks of very generous and expensive gardening leave following a falling out at executive level about which 'CoG may have concerns'.
David's deceit and tardiness, unnecessarily delaying the meeting, misleading governors, amply demonstrating the ineffectiveness of the 'assurance model' developed by LSCFT - "You can tell them (almost) anything", deceiving CoG at this fundamental level being normalised.
In terms of your Review, let's just recap. According to disclosures and published documents, you requested this Review as you arrived in post having already been extensively briefed by David Eva, and through a 'package' prepared by Ursula. Can I be provided with a copy of all that briefing material, on my relationship with the Trust please, as described to you, as I believe you have and remain misinformed. Again, treat this request as a further FOl if there is a reluctance to simply be 'transparent' about it. it. It should, of couse, have already been dislosed to me as part of the SAR disclosures, but of course, it hasn't.
On 10 May 2023 Mr. Fillingham wrote to Mr. Brear setting out how the NHS Trust intended to communicate with Mr. Brear going forward. Mr. Fillingham highlighted the findings of the Hempsons report in March 2022, the GGI report in August 2022 and the desktop review. He set out the information requests that the NHS Trust was dealing with from Mr. Brear and Ms Clitheroe and referred to extracts from the First-tier Tribunal’s judgment in Ms Clitheroe’s appeal. He referred to the recent correspondence from Mr. Brear. The letter concluded as follows:
The Trust agrees with, and accepts, GGI’s independent findings that your conduct is inappropriate. This view is also shared by a large majority of other governors, as demonstrated by their decision to remove you as a governor.
Your allegations against the Trust and various members of staff have been found to be unsubstantiated following several processes, including by Hempsons, GGI and the Information Rights Tribunal. These findings also demonstrate that your opinions regarding matters of governance within the Trust and the NHS generally are frequently at odds with the body of professional opinion regarding such matters.
We are of the view that, contrary to your assertions, your behaviour is neither conducive to nor genuinely aimed at improving governance within the Trust; instead such behaviour has been found to damage the effectiveness of governance processes and to have had a negative impact on staff and governors.
We are of the view that rather than showing insight into such matters and improving your conduct accordingly, you continue to engage in such behaviour, even after you no longer have a role at the Trust.
We consider that you are engaging in, and are likely to continue to engage in, unreasonable and persistent communications with the Trust and its staff, including propensity towards manifestly unfounded, excessive, repetitive and/or vexatious correspondence and requests for information.
…
How we will manage communication with you going forward
As a public body the Trust is responsible for the management of finite public resources and ensuring that its staff are able to undertake their responsibilities without being the subject of persistent and unreasonable communications.
We are therefore putting in place the following arrangements for communication with you going forward.
Single point of contact
Your single point of contact for dealing with the Trust will be:
company.secretary@lscft.nhs.uk
You must not contact any other individual at the Trust directly. any directly.
Written correspondence
We request that all written correspondence for the Trust is sent to the above email address. All such correspondence will be reviewed and where the Trust considers it necessary or otherwise appropriate to respond we will do so. However, the Trust will not necessarily acknowledge or respond to all such correspondence.
Responses that are provided will be provided within any applicable statutory timescales. For the avoidance of doubt we will be responding separately to your subject access and freedom of information requests contained with your emails of 6 April 2023 (timed at 11:49, 12:02 at 13:39) and of 7 April 2023 (timed at 18:24).
Availability
The Trust will only be available to review correspondence on working days, Monday to Friday, 09:00-17:00.
Legal proceedings
Our address for service of pre-action correspondence and legal proceedings is Trust Headquarters, Sceptre Point, Sceptre Way, Walton Summit, Bamber Bridge, Preston, PR5 6AW.
…
We will monitor the level and content of your communications. We sincerely hope that you will cooperate with the reasonable requests made within this letter regarding your communications with us, which we consider to be in the interests of all concerned. However, if you choose not to do so, we are likely to consider this to be deliberately vexatious behaviour towards the Trust and its staff. This may lead to us further restricting our correspondence with you.
…
On 10 May 2023 Mr. Fillingham responded to the emails of 29 March and 6 and 7 April.
On 11 May 2023 Mr. Brear emailed Mr. Fillingham directly, albeit indicating that in future he would write as requested, asking him to reflect on two matters.
On 17 July 2023 Mr. Brear emailed the former Lead Governor directly. In it he highlights failings of the NHS Trust and accuses the former Lead Governor of failing to hold it to account:
…
And your job was to hold them to account. Our leaders. What a joke you allowed your CoG to become. You were the CoG they must have dreamt about. A least one of them referred to your CoG as ‘useful idiots’.
Your unwillingness to accept you had got so much wrong as governors made you blind to the obvious and willing to tolerate bullying, deceit and ineptitude within the Board. Well done!
…
If only you had put your own egos to one side and listened…You facilitated failure.
The Trust is now in better shape despite of you, rather than because of you. My work is done. Truth hurts, as they say.
On 20 July 2023 Mr. Brear emailed two Governors, copying in Mr. Fillingham.
Just ploughed through the recent agenda, every one of the 440 pages!
Like on so many issues, CoG was lied to, treated with contempt, by the then Chair about CD's departure. Even the auditors say as much, in audit language! She was dumped, quite rightly, at great expense, quite wrongly, quickly followed by DE.
A badly run and badly led Trust has been well and truly shaken up. up. I have lost count of the rule and process changes made by the Trust during and since my removal which mirror or arise from my six months in post. post. DF looks like the leader the Trust needed and I have no gripes with him.
Removing the disputes process from the Constitution speaks volumes. My removals were 'unlawful', there was an appeal mechanism, they refused to use it, the JR alternative is too costly intractable. to use it, the JR alternative is too costly intractable. But that’s life.
I think my job is done, but I will remain a reader of the papers.
…
On 22 July 2023 Mr. Brear sent a 3 page letter to Mr. Fillingham, at the appropriate email address, intended to ‘clarify a number of issues in the letter [of 10 May 2023] that appear to be misunderstood or mis-stated’. In that letter Mr. Brear raised or reiterated, amongst a number of other issues:
that he considered that his second removal as a Governor was a clear abuse of process that he wished to challenge under the disputes procedure,
that the removal of the disputes procedure in the most recent version of the Constitution was ‘ultra vires’,
that he was moved by an invalid process on the first occasion,
that the Hempsons report was found to be inaccurate at the time,
that it was widely accepted that GGI will write whatever their commissioning client asks them to, the investigation lacked fairness and due process and was wholly defective,
that his apology had been presented as a ‘non-apology’ to the Council of Governors,
that the desktop review involved those being reviewed to review themselves
In that letter Mr. Brear also queried the communication restrictions: ‘Are you saying I cannot liaise with Members, Governors or staff who I know and wish to brief me or advise me of issues within the Trust? If so, on what basis is this restriction being applied to me?’
On 25 July 2023, Mr. Brear sent the NHS Trust a copy of the Code of Governance for Trusts for Mr. Fillingham’s attention, referring to the paragraph dealing with what should happen in the event of dispute about the removal of a Governor. He also asked the NHS Trust to address the absence in the current annual report of reference to the connection between GGI and the interim company secretary.
On 25 July 2023 Mr. Brear asked the NHS Trust to review its response to his FOI request relating to the engagement of GGI.
On 21 August 2023 Mr. Brear emailed the appropriate email address and Mr. Fillingham directly, sending a draft of a letter he intended to send to a number of national newspapers and giving Mr. Fillingham the opportunity to comment. The letter dealt with a number of broader issues but included the following in relation to Mr. Brear’s removal:
Having become a Trust governor in in 2022 and discovered a plan to install an inexperienced and ‘benign’ chairman, over-acquainted with the selection panel and CEO, I challenged the process and the favoured candidate very rapidly withdrew. My 'reward‘ was to be investigated by the friends and former colleagues of the Trust company secretary running the process, people he had had known and worked with for 15 years and who the Trust were already paying over a hundred thousand pounds for ‘improvement. ' After six months 'investigation' and the doubling their fees, their “independent report” exonerated him and found me guilty of being “a material risk” to the Trust for challenging its actions. The chair then arbitrarily suspended me and invoked a ‘removal procedure’ which I was not allowed to attend and where he peremptorily dismissed my written representations as ‘process issues’. I was removed by those whose inaction and ineptitude I had dared challenge and caused to be ‘upset’.
I sought to invoke the prescribed Disputes Procedure of the Trust Constitution, designed to challenge such actions. I was disingenuously told ‘wrong type of dispute’, you cannot speak the actions of the chairman!
Unfazed by my mistreatment I sought re-election. The Trust overtly tried to fix the election. I challenged this, and they admitted and then withdrew the fix, so I was elected again.
They then sought to remove me again, without representation, and I was again ‘removed’ by the same people I had embarrassed. I sought to invoke the Disputes Procedure again, so they rewrote the Constitution to remove the Disputes Procedure completely, and disallow ‘removed’ governors from ever being elected again. This is how Trusts deal with challenge, with impunity.
My only recourse for these actions is to spend £50,000 of my own money on a judicial review, grind out a resolution, or allow the Trust to believe it can out-spend or ‘out-gun’ any complainant to whom wrongdoing is apparent, be that a frustrated group of consultants or a retired chief police officer. The Trust has spent at least £250,000 ‘fighting me’.
On 24 August Mr. Fillingham replied to the letters of 22 and 25 July 2023 and clarified the single point of contact request, stating that the request is ‘so that the Trust, as a public body, can manage finite public resources appropriately and ensure that its people can undertake their responsibilities without being the subject of persistent and unreasonable communications’.
On 24 August Mr. Brear replied, in an email sent to both the single point of contact and to Mr. Fillingham directly. He complained in that email that Mr. Fillingham had failed to address the substance of the emails it purported to answer. He stated ‘I must, therefore, repeat and formalise those questions which you have declined to answer’. This included reiterating his request for the meeting and the procedure removing him as Governor to be referred to independent arbitration under the Disputes Procedure.
On 22 September the NHS Trust replied, reminding Mr. Brear to use the single point of contact. The letter stated:
We also indicated that we would not necessarily acknowledge or respond to your correspondence, particularly where it raises issues that have been responded to previously. Yet, much of your correspondence amounts to a continuation of your conduct of repeating accusations against the Trust and specific members of staff that have already been responded to, targeting particular individuals, and generally demonstrating unreasonable persistence in relation to these issues. We are of the view that much of your correspondence amounts to deliberately vexatious behaviour. We will continue to monitor and log the level and content of your communication, but may not acknowledge or respond to your correspondence, in the interests of managing finite public resources and ensuring that our staff are able to undertake their responsibilities, without being the subject of persistent and unreasonable communications.
Although the NHS Trust stated that it considered that the letter of 24 August raised issues that they had already responded to on multiple occasions, the letter gave a substantive response to all the issues raised in the letter of 24 August. In relation the request for arbitration the letter stated:
We have already refused your request for arbitration and set out the reasons for this.
We refer to our letters/emails of 4 January 2023, 18 January 2023, 7 March 2023, 16 March 2023 and 10 May 2023, as well as correspondence from Capsticks Solicitors LLP on behalf of the Trust in relation to your proposed judicial review proceedings. We have nothing further to add to the responses provided previously. Furthermore, we note that at the time of you instigating judicial review proceedings regarding such matters, in particular your application to court for interim relief, your proceedings were out of time. That is even more so the case now. We consider that having explored judicial review as a remedy, to then return to repeating those same underlying allegations, amounts to unreasonable persistence in seeking reopen matters that have already been addressed.
Mr. Brear replied to the single point of contact on 22 September. He stated:
…it appears necessary to remind you that my communications have been outside your requested arrangements due to the erratic and inconsistent responses of the Trust and the changing information becoming available, including 'out of office' responses asking for other persons to be advised of my correspondence and replies from personal email addresses to me, to which I have responded. Be assured, my correspondence is not vexatious, in all cases I am addressing new and serious issues arising from new Trust publications and new Trust correspondence, albeit associated with outstanding matters you unilaterally wish to regard as closed. Indeed, I fail to see how the Trust can declare issues as closed when it is the Trust which is providing further commentary and information on them, which had not previously been disclosed.
You will know that the Administrative Court has agreed that it failed to deal with my application for an injunction appropriately, or advise me of its then belated actions, and there was no application for a judge to consider whether any part of the application should be dealt with out of time. The matter has been referred back for its further consideration.
Mr. Brear then set out his position in relation to the substantive responses, including asking for further information on the relationship with GGI, to be treated as a FOI application if the NHS Trust believed appropriate.
On 25 October 2023 Mr. Brear emailed the single point of contact and Mr. Fillingham directly. In that email he dealt in detail with the meeting of 20 December 2022 in which he was removed as a Governor the second time, stating that he had recently discovered that the meeting was inquorate. He concluded ‘It now appears that despite the views of the Trust, both ‘removals’ were defective and therefore have no legal standing. It remains my wish to act as an LSCFT governor’.
In May 2024 Mr. Brear became aware that the former Lead Governor had stood for election in another foundation trust. Mr. Brear states that, as a result:
I searched the internet to discover where and noticed his ‘Google results’ page had substantially changed since I had last looked at it in 2022. Many of his now dated social media ‘photo opportunities’ had not been replaced with more recent ‘events’ but by more mundane matters including his inclusion on Companies House webpages as a director of the company/charity “Renaissance”, formerly known as Lancashire Drugline and his election to a different local FT.
…
On examining the Companies House records, to my further surprise, I saw that from 2006 – 2009 he had first been company secretary and from 2016 – 2022 he had been a director and trustee of the company/charity, and most pertinently, he had been a longstanding director when elected to LSCFT in 2017, through to July 2022.
What further caused me great consternation was that the records showed that on 1st July 2022, during the most active weeks of the “independent investigation” into governors’ conduct, he had suddenly resigned the directorship and seemingly ‘removed’ the conflict.
…
It appeared to me, more likely than not, that LSCFT may have been complicit in both his irregular elections, the misrepresentation or concealment of his status, and the concealed payment of funds to his charity. To conclude otherwise meant he had successfully ‘pulled the wool over everyone’s eyes’ for almost six years.
Complicity also explained two long unresolved issues: Why had the Lead Governor been so passive and compliant in his role, yet so aggressive in seeking my removal; and why had the Trust acted so disproportionately in 2022, spending over £120,000 to remove me, absent any attempt at ‘advice’, ‘conciliation’ or ‘mediation’ (notwithstanding the conflict ended well before the investigation began).
On 19 May 2024, Mr. Brear emailed the former Lead Governor directly to his personal email address in an email headed ‘Yet another undeclared conflict of interest’. The email stated:
As I said, as a poster boy for Lancon you were well and truly compromised and you mishandled the selection process
I now see, like Ash Ayers, you were another governor whose organisation was in receipt of significant LSCFT funds and had yet another undeclared conflict of interest in every decision proposed by the Chair or Trust.
Your 'loyalty' was bought by LSCFT. Tens of thousands of pounds of LSCFT money was paid to a charity you were a Trustee of, and nowhere did you mention this compromise or role in your multiple Trust biographies or voting decisions. A totally undeclared conflict of interest, at any time. I wonder why?
Is this the inadequate level of self awareness and integrity required for the Specials and Lancon employees now? To deceive and conceal your conflicted interests to gain personal status?
What a corrupt little group you were part of. No wonder you didn't want transparency or integrity, let alone experience and ability, within your group.
All murky water under the bridge you think? I can assure you it isn't.
As the saying goes, you must struggle to lie in bed straight, the classic hypocrite, pretending one thing, desperate for approval, whilst being another. What else are you hiding?
On 19 May 2024 Mr. Brear wrote an email to the single point of contact and Mr. Fillingham direct, which said:
You may regard it as irrelevant now, but I have just discovered former Lead Governor [name redacted]’s further undeclared conflict of interest, further compromising his ability to make objective and fair decisions, known to the Trust, but deliberately concealed.
That he was a Trustee of Renaissance Uk Ltd. for 16 years, charity in receipt of tens of thousands of pounds from LSCFT, a conflict undeclared at any meeting and a position mysteriously omitted from his multiple LSCFT biographies, should be of concern to you as yet another system failure in LSCFT corporate governance, as well as an indicator of the appalling ethical and governance standards of the Trust and the decisions he and his cohort were involved in.
Let's be clear, the Trust had …the Lead Governor, 'in its pocket', it knew it had, and it exploited and assisted in the concealment of this conflict.
Your reaction will no doubt reflect the importance you place on integrity and transparency in the conduct of Trust business.
Mr. Brear made the request in issue in this appeal on 21 May 2024. On 26 May 2024 he emailed Mr. Fillingham directly, copying in the single point of contact. He said:
I am writing to invite you, once again, 'to do the right thing' and act as the Nolan Principles, NHS values, common decency and the responsibilities of a NHS foundation trust and NHSE 'improvement' body chair would suggest you should.
At a time when much greater institutions have been found wanting due to their 'cover-up' and 'deny reality' culture, you will be well aware that you too are presiding over your own 'mini post office', 'mini Letby', 'mini infected blood' scandal etc ., whereby you also inherited misdeeds and misjudgements of others and adopted those poor decisions rather than risk the uncertainties and unpopularity of challenging them.
If you persist in this position then, as I am sure you have come to realise, I will persist in mine, grinding and chipping away at the falsehoods you and others have relied on, until the illusion they have created does eventually collapse.
With the discovery of 'new information', you now have another opportunity to resolve this administrative debacle. It may otherwise take another four years, or more, many more hundreds of thousands of pounds and innumerable staff hours. It may even need another chair appointment. What is clear is that the lies and deceit you have relied on will, in due course, be exposed, and you are inviting that opprobrium to be laid at your door.
[The former Lead Governor], holding a not insignificant public office, was 'double compromised' in the first and second selection process leading to your appointment. He had either concealed from the Trust his fundamentally conflicted position as a governor, lead governor and charity trustee, 'in receipt' of very substantial LSCFT funds, £87,500, as well as his close association with a particular candidate, a very improbable scenario, or both he and trust executives knew of these conflicts and persistently ignored them.
By any analysis he was 'in the pocket' of the Trust on all matters, and biased towards one candidate in the selection process, and the Trust knew he had no proper role in CoG decision making, yet it supported, promoted and defended him in that fundamentally compromised role.
It is equally clear that GGI were either misinformed about the first of these issues, or they too corruptly agreed to act as if it did not exist. It appears inconceivable that they concluded to admonish him and the Trust in their report for mishandling his explicit association with a candidate, but remain silent on an even more substantive conflict.
I have to suggest that this first conflict further vindicates my initially unevidenced concerns arising in February 2022, and my necessary actions which followed, to hold the Trust to account. It was apparent from the outset that the process was being deliberately mishandled. I assumed, when the known candidate was belatedly identified to us, that the undisclosed relationship was the salient issue. It now turns out I was wrong. This was just one of the many defects in the process, the more significant issue being that for four years the Lead Governor had hidden a financial relationship with the Trust from his colleagues, and the Trust knew he had. I am sure no-one is going to again claim 'he mentioned it in passing, some years ago, but no-one recorded it, and that was enough"?
This begs the question, if GGI (copied in) knew of this wider and greater conflict, that undermines the integrity of the Lead Governor, did they too cover this up, allow him to see out his tenure, quietly retire and recommence as governor elsewhere? If they did, then their investigation and report are void of any integrity and credibility. If they did not, then they too were misled by directors of the Trust, and by [the former Lead Governor], as Lead Governor, and the same conclusion applies.
You have relied on the GGI report to remove me in an ultra vires fashion, as did your predecessor, then claim it was a sufficiently thorough and independent investigation to nullify the need for your decision to be independently reviewed. You were, clearly, wrong, whichever scenario applies.
The failure to address this issue in the GGI report and the significance of the timing of [the Former Governor] resigning as a trustee should not be lost on you.
It is recorded at Companies House on July 1st. Therefore he must have concluded he must resign in May or June, in the midst of the GGI investigation into his and my (and others') conduct, and around the time of his interview(s). He and others knew the two posts he held were incompatible. This known defect in governance was 'covered up' then and then for another two years. It is being covered up now.
I do not know [the former Lead Governor]’s current status with Lancashire Police, save to say it is much less than the social media profile he presented in 2021/22. If he is still 'employed' by them, your inaction and his continued deceit about this matter give me no option but to bring to Lancashire Police's attention the incompatibility between his the positions of trust he holds and his conduct as Lead Governor, deliberately and persistently deceiving colleagues and breaching integrity policies. They can investigate and draw their own conclusions.
A similar situation arises with LTHTR where he again presents as a benign character, experienced in FT governance, whilst concealing a willingness and track record of deceit and breaches of trust policies, trust principles and trust colleagues, if not the public he represents, for his own aggrandisement.
It may well be that LTHTR adopt the same approach as LSCFT, that the ends justify the means, integrity does not matter, that cover-ups work. I will invite them to decide.
The remedy to this is in your hands. I remain available for a discussion on how to draw a line under these matters, as much as I remain committed to ensuring a proper resolution is, eventually, determined, by you or others.
I remain in correspondence with NHSE, the Cabinet Office and the Thirlwall Inquiry.
I trust my separate and pending FOIA request asking for this relationship to be explained will, at some stage be acknowledged, and in a reasonable period, be responded to.
On 9 June 2024 Mr. Brear emailed Mr. Fillingham directly again. He wrote, inter alia:
I have raised new and significant issues, which if are of the nature I suspect they are, vindicate my concerns and actions in 2022 and undermine the actions taken against me, which you have since supported.
Request, Decision Notice, and appeal
The request and the response
Mr Brear made a request for information to the NHS Trust on 21 May 2024. Because of the length of the request it is not included in full in this decision. There were five parts to the request. In summary:
In part one Mr Brear requested information related to the decisions made by the NHS Trust or its agencies regarding payments to the charity Renaissance UK (formerly Drugline Lancashire). Mr Brear sought information on how these decisions were made, including the involvement of the former Lead Governor and trustee, and any potential conflicts of interest. He also asked for details on the amounts paid, the decision-making process, and any unsuccessful bids for funding by the charity.
In part two Mr Brear sought information on the election of the Lead Governor between 2016/17 and 2022/23. Mr Brear requested documentation showing whether he declared his role as a trustee of Drugline Lancashire during his elections and any records of him declaring this conflict of interest in Trust documents. He also asked for information on how this conflict of interest was managed and whether it was made apparent to the Trust, its members, or the public
In part three Mr Brear requested information on the financial contributions made by NHS Trust to the organisations associated with two Nominated Governors. He sought details on the amounts contributed each financial year and how these conflicts of interest were recorded, published, and managed by the Trust. He asked for information on any other governors who may have had similar conflicts of interest and how the Trust ensures that all relevant declarations of potential conflicts of interest are made.
In part four Mr Brear requested information on the conflicts of interest policies applicable to elected and nominated trust governors since 2018. He sought copies of the Codes of Conduct signed by the named governors and information on how the NHS Trust regards a governor being a trustee of a charity bidding for or receiving funds from the Trust as a conflict of interest
In part five Mr Brear sought information on how the alleged conflict of interest of the former Lead Governor was considered by Trust directors or senior staff. He asked for details on any discussions or considerations of this conflict, particularly during the GGI investigation into the conduct of governors, and whether this issue was brought to the attention of GGI.
The NHS trust responded to the request on 18 June 2024 and refused the request on grounds that it was vexatious. It upheld this position on internal review and Mr Brear referred the matter to the Commissioner.
The decision notice
In a decision notice dated 29 November 2024 the Commissioner decided that the NHS Trust was entitled to rely on section 14(1) FOIA to refuse to comply with the request.
The Commissioner noted that Mr Brear had a genuine belief that the public authority is or, at least, was dysfunctional and that it is only through Mr Brear’s challenge that matters have, or would, improve. The Commissioner said that it was not his role to determine how well such a belief was grounded in fact.
The Commissioner accepted that the request seen in isolation had a serious purpose as it related to alleged conflicts of interest and potential misuse of public funds, albeit the individual concerned no longer has a role at the NHS Trust.
The Commissioner agreed with the NHS Trust that there was a clear link between this request and Mr Brear’s time as a governor.
The Commissioner noted that a report carried out into the NHS Trust’s governance and Mr Brear’s behaviour found inappropriate conduct and behaviour on behalf of Mr Brear, including intimidatory or bullying behaviour, disruptive and antagonistic approach to the public authority, disrespectful and inappropriate challenge, contemptuous and critical attitude towards colleagues and failure to follow proper processes, protocols and instructions.
The Commissioner noted that Mr Brear did not accept the parts of the report that are critical of him, but that correspondence provided by the NHS Trust indicates that Mr Brear appears to accept and even endorse the sections of the report which are critical of the NHS Trust. The Commissioner agreed with the NHS Trust that this demonstrates a pattern of Mr Brear seeking to undermine or discredit those who call out his behaviour as opposed to taking responsibility for that behaviour and considering the impact it was having on those around him.
The Commissioner noted that Mr Brear said in his grounds of complaint that he had requested the information because ‘Had this information been available during the investigation it would have fundamentally altered the investigation’. The Commissioner said, having seen the full report, he was deeply sceptical that, even if Mr Brear was correct about what the information would show, it would have made any significant difference to the conclusions the report reached about his behaviour.
The Commissioner concluded that it was a consistent theme in the correspondence that Mr Brear’s view was that what he describes as his ‘increasingly challenging and direct communication style’ was justified.
The Commissioner found that Mr Brear’s main motivation in making his request was the hope that he could use the information to excuse his past behaviour and that Mr Brear may still be seeking reinstatement as a governor.
The Commissioner recognised that Mr Brear’s correspondence was frequent, slightly higher than once every other week on average in 2023. He noted that there tended to be periods of intense correspondence followed by a lull. The Commissioner noted that the correspondence was often lengthy and contained accusations of wrongdoing or personal attacks against the NHS Trust’s staff or both.
The Commissioner included extracts that reflected Mr Brear’s style of correspondence:
What a corrupt little group you were part of. No wonder you didn’t you want transparency or integrity, let alone experience and ability, within
your group.
All murky water under the bridge you think? I can assure you it isn’t.
As the saying goes, you must struggle to lie in bed straight, the classic hypocrite, pretending one thing, desperate for approval, whilst hypocrite, being another. What else are you hiding?
And your job was to hold them to account. Our leaders. What a joke you allowed your [Council of Governors] to become You were the CoG they must have dreamt about. At least one of them referred to your CoG as ‘useful idiots’!
Your unwillingness to accept you had got so much wrong as governors made you blind to the obvious and willing to tolerate bullying, deceit and ineptitude within the Board. Well done!
I laughed out loud when I read they are finally dropping Sefton as an irrelevance. As I said...18 months ago, why are you even there? Your feet too far ‘under the table’ you shouldn’t even be sitting at, due to your apathy, just doing damage.”
The Commissioner considered it ‘grotesque’ that Mr Brear has repeatedly compared his own situation to those involving the Post Office and contaminated blood products, as well as to the Thirlwall Inquiry (looking into how Lucy Letby was able to murder babies at the Countess of Chester Hospital). He said that no reasonable person could draw comparisons between the removal of a governor, for evidenced inappropriate behaviour and situations in which innocent people have been murdered, wrongfully imprisoned or infected with life-limiting viruses.
The Commissioner’s view was that answering the requests was very unlikely to bring matters to a close or move them forward. The Commissioner found that Mr Brear would be likely to either claim that the information entirely justified his behaviour or, if he was unable to demonstrate what he thinks the records show, he would move onto another target to achieve the same goal. He found that the public authority is entitled to draw a line in the sand and move on.
In the Commissioner’s view, whatever public interest value the request has is easily outweighed by Mr Brear’s improper motivation in making it, his attempts to disrupt the work of the NHS Trust and the general burden of work he has place on them over the last two and a half years.
The Commissioner therefore found that the request was one that was both an abuse of the process, without reasonable foundation and which would require disproportionate effort.
Notice of appeal
In essence, the grounds of appeal are that the Commissioner was wrong to conclude that the request was vexatious. The tribunal has read and taken account of the grounds of appeal in full.
Mr. Brear raises a number of issues about the reasoning and approach of the Commissioner and the wording of the decision. As the tribunal conducts a full merits review, we do not need to make findings on those matters, as any errors in reasoning etc. are corrected by the full merits review.
The Commissioner’s response
The Commissioner stood by his decision notice.
Legal framework
S 14(1) Vexatious requests
Guidance on applying section 14 is given in the decisions of the Upper Tribunal and the Court of Appeal in Dransfield ([2012] UKUT 440 (AAC) and [2015] EWCA Civ 454). The tribunal has adapted the following summary of the principles in Dransfield from the judgment of the Upper Tribunal in CP v Information Commissioner [2016] UKUT 427 (AAC).
The Upper Tribunal held that the purpose of section 14 must be to protect the resources of the public authority from being squandered on disproportionate use of FOIA. That formulation was approved by the Court of Appeal subject to the qualification that this was an aim which could only be realised if ‘the high standard set by vexatiousness is satisfied’ (para 72 of the CA judgment).
The test under section 14 is whether the request is vexatious not whether the requester is vexatious. The term ‘vexatious’ in section 14 should carry its ordinary, natural meaning within the particular statutory context of FOIA (para 24). As a starting point, a request which is annoying or irritating to the recipient may be vexatious but that is not a rule.
Annoying or irritating requests are not necessarily vexatious given that one of the main purposes of FOIA is to provide citizens with a qualified right of access to official documentation and thereby a means of holding public authorities to account. The Commissioner’s guidance that the key question is whether the request is likely to cause distress, disruption, or irritation without any proper or justified cause was a useful starting point as long as the emphasis was on the issue of justification (or not). An important part of the balancing exercise may involve consideration of whether or not there is an adequate or proper justification for the request.
Four broad issues or themes were identified by the Upper Tribunal as of relevance when deciding whether a request is vexatious. These were: (a) the burden (on the public authority and its staff); (b) the motive (of the requester); (c) the value or serious purpose (of the request); and (d) any harassment or distress (of and to staff). These considerations are not exhaustive and are not intended to create a formulaic checklist.
Guidance about the motive of the requester, the value or purpose of the request and harassment of or distress to staff is set out in paragraphs 34-39 of the Upper Tribunal’s decision.
As to burden, 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 the request is properly to be described as vexatious. In particular, the number, breadth, pattern, and duration of previous requests may be a telling factor. Thus, 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. A requester who consistently submits multiple FOIA requests or associated correspondence within days of each other or who relentlessly bombards the public authority with email traffic is more likely to be found to have made a vexatious request.
Ultimately the question was whether a request was a manifestly unjustified, inappropriate, or improper use of FOIA. Answering that question required a broad, holistic approach which emphasised the attributes of manifest unreasonableness, irresponsibility and, especially where there was a previous course of dealings, the lack of proportionality that typically characterises vexatious requests.
In the Court of Appeal in Dransfield Arden LJ gave some additional guidance in paragraph 68:
“In my judgment the Upper Tribunal was right not to attempt to provide any comprehensive or exhaustive definition. It would be better to allow the meaning of the phrase to be winnowed out in cases that arise. However, for my own part, in the context of FOIA, I consider that 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. Parliament has chosen a strong word which therefore means that the hurdle of satisfying it is a high one, and that is consistent with the constitutional nature of the right. The decision maker should consider all the relevant circumstances in order to reach a balanced conclusion as to whether a request is vexatious. If it happens that a relevant motive can be discerned with a sufficient degree of assurance, it may be evidence from which vexatiousness can be inferred. If a requester pursues his rights against an authority out of vengeance for some other decision of its, it may be said that his actions were improperly motivated but it may also be that his request was without any reasonable foundation. But this could not be said, however vengeful the requester, if the request was aimed at the disclosure of important information which ought to be made publicly available...”
Nothing in the above paragraph is inconsistent with the Upper Tribunal’s decision which similarly emphasised (a) the need to ensure a holistic approach was taken and (b) that the value of the request was an important but not the only factor.
The lack of a reasonable foundation to a request was only the starting point to an analysis which must consider all the relevant circumstances. Public interest cannot act as a ‘trump card’. Rather, the public interest in the subject matter of a request is a consideration that itself needs to be balanced against the resource implications of the request, and any other relevant factors, in a holistic determination of whether a request is vexatious.
The role of the tribunal
The tribunal’s remit is governed by section 58 FOIA. This requires the tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved exercising discretion, whether he should have exercised it differently. The tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.
Evidence and submissions
We had before us and took account of, where relevant, an open bundle. The bundle contained a number of lengthy and detailed written submissions from Mr Brear. The panel took the time to read and absorb those submissions, and we discussed Mr. Brear’s submissions at length. It has not been necessary to set out or deal with every point made by Mr. Brear in this decision, but that does not mean that we did not take those points into account.
Discussion and conclusions
Request to ‘strike out’ part of the decision notice
We have no power to strike out parts of the Commissioner’s decision notice.
However, in considering whether the request is vexatious, and having read all of the correspondence in detail, we do not agree that it is an accurate reflection of the correspondence to say that Mr. Brear has ‘repeatedly compared his own situation to the scandals involving the post office and contaminated blood products, as well as to the Thirlwall Inquiry’. Mr. Brear’s focus was on the similarities he saw in the alleged ‘cover up’ or failure to act when wrongdoing was raised, not on any similarity in the gravity of the underlying issues. He expressly acknowledges that, in his case. ‘(t)hese were important but relatively inconsequential administrative issues, not deaths and grievous injuries…’ Looked at in context, we do not agree with the Commissioner’s characterisation of Mr. Brear’s conduct in referring to those matters as ‘grotesque’.
Preliminary observations
In Kennedy v Charity Commission [2014] 2 WLT 808, Lord Sumption, with whom Lord Neuberger and Lord Clarke agreed, said as follows, at para 153:
“The Freedom of Information Act 2000 … introduced a new regime governing the disclosure of information held by public authorities. It created a prima facie right to the disclosure of all such information, save in so far as that right was qualified by the terms of the Act or the information in question was exempt. The qualifications and exemptions embody a careful balance between the public interest considerations militating for and against disclosure. The Act contains an administrative framework for striking that balance in cases where it is not determined by the Act itself. The whole scheme operates under judicial supervision, through a system of statutory appeals.”
It is important to remind ourselves of those observations. FOIA creates a prima facieright to disclosure of information held by public authorities, save in so far as that right is qualified by the terms of FOIA or the information in question is exempt. Further, we remind ourselves that the qualifications and exemptions embody a careful balance between the public interest considerations militating for and against disclosure.
The purpose of section 14 is “to protect the resources (in the broadest sense of that word) of the authority from being squandered on disproportionate use of FOIA.” (UT, Dransfield, para 10). In order to achieve this purpose, as the Court of Appeal noted (CA, Dransfield, para 68),Parliament has chosen to use a strong word, and therefore the hurdle of satisfying it is high.
Section 14 must not be interpreted in a way that in effect introduces a ‘public interest’ threshold that all requestors have to pass. If no exemption is engaged, there is a right to disclosure of information held by public authorities whether or not there is any public interest in disclosure.
Nor should section 14 be interpreted in such a way that it operates as a ‘catch all’ exemption. It should not be used to avoid the need to consider whether the authority is entitled to rely on an exemption to withhold the information, even where it might appear obvious to the authority, the Commissioner or the tribunal that the requested information ought to be withheld either in the public interest or for some other reason. Parliament has chosen which exemptions to include and determined how those exemptions operate in order to embody the ‘careful balance’ identified above. Section 14 is not designed to avoid the need to consider the application of individual exemptions.
Application of section 14
Although the four broad issues or themes identified by the Upper Tribunal in Dransfield are not exhaustive and are not intended to create a formulaic checklist, they are a helpful tool to structure our discussion, although some elements do not fit neatly under one heading. In adopting this structure, we have taken a holistic approach, and we bear in mind that we are considering whether or not the request was vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA.
Motive
We are not persuaded that Mr. Brear became a Governor to cause trouble, as a result of his previous involvement with the NHS Trust as a result of his wife’s requests for information.
We recognise that when Mr. Brear became a Governor he was entitled to challenge the NHS Trust and to do so robustly. We find that much of what Mr. Brear raised in 2022 could be described as appropriate challenge. We find that the challenges Mr. Brear made while he was a Governor in 2022 were made with the motive of holding the NHS Trust to account and ensuring that it behaved in accordance with its rules and appropriate values. There was, in our view, no underlying inappropriate motive at that stage.
In our view, it is not inappropriate, having been removed twice as a Governor, to attempt to challenge that robustly.
We accept that Mr. Brear has raised a number of significant concerns about the independence and validity of the investigations and reviews that have taken place, but it remains the case that the issues giving rise to his removal have been examined in a detailed investigation by GII, in a desktop review by the NHS Trust and in a number of detailed responses by Mr. Fillingham. Mr. Brear had also issued a judicial review in relation to his removal(s), although that was ultimately determined to have been issued out of time.
In correspondence throughout 2023 Mr. Brear regularly, repeatedly and at length made the same points about his removal, despite the NHS Trust having made its position clear on a number of occasions. Following the letter on 10 May requesting him to communicate only to a single point of contact, he repeatedly sent emails directly to Mr. Fillingham, or included him as the addressee, contrary to the NHS Trust’s requests. That letter also indicated that the NHS Trust would not respond again on issues that he had already raised. Mr. Brear continued to raise issues about and challenge his removal.
Mr. Brear’s approach seemed to change after the NHS Trust’s email of 22 September 2023, reiterating its substantive position on the various issues raised about Mr. Brear’s removal, the communication arrangements and its position that Mr. Brear was being unreasonably persistent. Although Mr. Brear sent two more substantive emails in early October, in which he made clear that he still considered that both removals were defective and had no legal standing, his communications to the NHS Trust on the matter of his removals then stopped.
We have concluded that that the primary motive behind the FOIA request in issue in this appeal was to resurrect the challenge to his removal as Governor. In our view, by resurrecting the issue of his removal as Governor again in May 2024, Mr. Brear had become unreasonably persistent and intransigent.
We have concluded that this is the motive behind the request for information on the basis of the letters sent to Mr. Fillingham following the request on 26 May and 9 June 2024. We have set out the letter of 26 May in full, because our inference is based on the entire letter. The sections that, in our view, make Mr. Brear’s motive particularly clear include:
I have to suggest that this first conflict further vindicates my initially unevidenced concerns arising in February 2022, and my necessary actions which followed, to hold the Trust to account…
…if GGI (copied in) knew of this wider and greater conflict, that undermines the integrity of the Lead Governor, did they too cover this up, allow him to see out his tenure, quietly retire and recommence as governor elsewhere? If they did, then their investigation and report are void of any integrity and credibility. If they did not, then they too were misled by directors of the Trust, and by [the former Lead Governor], as Lead Governor, and the same conclusion applies.
You have relied on the GGI report to remove me in an ultra vires fashion, as did your predecessor, then claim it was a sufficiently thorough and independent investigation to nullify the need for your decision to be independently reviewed. You were, clearly, wrong, whichever scenario applies.
The failure to address this issue in the GGI report and the significance of the timing of [the Former Governor] resigning as a trustee should not be lost on you.
He summarises the point in his letter of 9 June 2024 as follows:
I have raised new and significant issues, which if are of the nature I suspect they are, vindicate my concerns and actions in 2022 and undermine the actions taken against me, which you have since supported.
That his persistence had become intransigence is demonstrated by the following quote from his letter to Mr. Fillingham:
At a time when much greater institutions have been found wanting due to their 'cover-up' and 'deny reality' culture, you will be well aware that you too are presiding over your own 'mini post office', 'mini Letby', 'mini infected blood' scandal etc ., whereby you also inherited misdeeds and misjudgements of others and adopted those poor decisions rather than risk the uncertainties and unpopularity of challenging them.
If you persist in this position then, as I am sure you have come to realise, I will persist in mine, grinding and chipping away at the falsehoods you and others have relied on, until the illusion they have created does eventually collapse.
Therefore while we accept elsewhere that this is not a case in which there is no possible value in the requested information – there is clearly value in transparency around potential conflicts of interest – we find that the primary motive behind making the request renders this an inappropriate use of FOIA. Mr. Brear’s primary motive in making the request was, we find, to reopen an issue that had already been comprehensively and exhaustively addressed by the NHS Trust over the course of 18 months by a number of routes, albeit to the dissatisfaction of Mr. Brear.
Burden
Taken alone, we accept that there would be a burden in complying with the request. It contains multiple parts and asks for multiple different types of documentation. However, we take the view that most of the requested documents should be readily accessible to the NHS Trust, and therefore we conclude that there would not be a very significant burden in complying with this request looked at in isolation.
However, 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 the request is properly to be described as vexatious.
We have summarised the course of dealings arising out of Mr. Brear’s removal as Governor above. Some resources will have been expended on the abortive judicial review. Mr. Brear made related and extensive subject access requests, FOIA requests or more general requests for information on 23 December 2022, 10 January 2023, 7 April 2023 and 22 September 2023. The letters written throughout 2023 are extensive, regular and detailed. They raise a number of detailed challenges and questions that needed to be addressed at length and repeatedly by the NHS Trust. Overall Mr. Brear’s challenge to his removals have placed a very significant burden on the NHS Trust.
We have not placed weight on the burden of dealing with the requests or correspondence from Mr. Brear or his wife that are not related to his removal as a Governor. This includes the appeal to the First-tier Tribunal and Upper Tribunal. For that reason, it has not been necessary to consider either party’s reliance on the findings of that tribunal. We accept that this has placed a separate and contemporaneous burden on the NHS Trust. However, in our view there is sufficient separation between the issues arising out of Mr. Brear’s removal and the issues arising out of the treatment of Mr. Brear’s friends prior to him becoming a Governor to exclude this burden from our consideration of vexatiousness.
Purpose or value
We accept that there is value in transparency in relation to a potential conflict of interest such as that highlighted, even though it is historic because the governor was no longer at the NHS Trust when the request was made. This value is not however a ‘trump card’ and has to be balanced against the resource implications of the request, and any other relevant factors, in a holistic determination of whether a request is vexatious.
Harassment and distress
Having carefully considered the evidence, we are not satisfied that there is sufficient evidence before us on which we could conclude that the request was harassing or distressing. We do not accept that it is appropriate to take account of Mr. Brear’s conduct when challenging the NHS Trust during his period as Governor that was dealt with in the GGI report, when considering whether this request was harassing or distressing. That period does not, in our view, legitimately form part of the relevant course of conduct. We accept that Mr. Brear expressed himself in correspondence in ways that we would describe as ‘scathing’ and that he was not willing to confine himself to emailing the single point of contact. Some of the worst examples were in correspondence to individuals no longer working for the Trust and we do not consider that to form part of the relevant course of conduct. Overall, there is no evidence that leads us to conclude that any staff or Governors at the NHS Trust were distressed or felt harassed by the contact from Mr. Brear arising out of his removals as Governor.
Conclusions
One of the main purposes of FOIA is to provide citizens with a qualified right of access to official documentation and thereby a means of holding public authorities to account. It is important for that qualified right of access that vexatiousness is a high hurdle. Further, whilst we have structured our discussion around a number of convenient headings, we must take a holistic approach to our assessment and we bear in mind that the fundamental question is whether or not the request was vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA.
In looking at the matter holistically we take account of the extensive burden throughout 2023 in particular, on the NHS trust in responding to Mr. Brear’s repeated challenges of the decisions to remove him as Governor; the lack of evidence in relation to any harassment and distress caused by the request; the potential value in transparency and our finding that Mr Brear’s purpose was to reopen or resurrect the issues surrounding his removal which have been dealt with, albeit to Mr. Brear’s satisfaction, extensively and repeatedly.
Overall, we take the view that Mr. Brear’s persistence has become intransigence and that this is case where he has drifted from proper challenge into vexatiousness. We find that this request is vexatious in the sense of being a manifestly unjustified, inappropriate and improper use of FOIA.
On that basis the appeal is dismissed.
Signed Date:
Sophie Buckley 11 July 2025
ANNEX ONE – wording of the request
“Application 1.
Please provide me with all relevant information relating to the decision(s) of LSCFT or Lancashire Care or its agencies or subsidiaries locally registered company and charity, Renaissance Uk, formerly known as company and charity, Renaissance Uk, formerly known as Drugline Lancashire.
This disclosure should include the papers and minutes of the papers meetings deciding and authorising all such payments, meetings deciding and authorising all such payments, including any and all ‘bidding’ or ‘request’ documentation considered at those meetings in respect of this company, and the minutes of considerations and decisions, including who was present and supporting or making those decisions.
For the avoidance of doubt, this disclosure should make transparent how, when and by who, requests for funds by charities or similar organisations are processed by LCFT/ LSCFT and how the decision to contribute funds to Drugline/ Rennaissance was made.
It should include any references to conflicts of interests associated with that process, including those which relate to a Trustee of that company, [the former Lead Governor], being a person known to and responsible for ‘holding to account’ the Board of the Trust.
This company’s published accounts show the first payment were after [the former Lead Governor]’s 2016 election, in FY 2017/18, of £17,500 contributed by “Lancs NHS Healthier Living”; a second identical contribution of £17,500 was made in FY 2018/19 by the same entity. A third payment of £17,500 was made by “Lancashire Care NHS” in FY 2019/20. A fourth payment of £16,042 was made FY 2020/21 also attributed to “Lancashire Care NHS” with ‘the balance’ of £1458 ‘making up’ the now repeated payment of £17,500 paid in the following FY 2021/22 by the same entity.
No further payments appear to have been made.
Please confirm whether all these payments, effectively, came from LCFT and LSCFT funds, and that an amount greater or lower than £87,500 (5x£17,500) has not been given by LSCFT/LCFT or their agencies or subsidiaries to this company. If a different amount has been given, please provide information which explains that/those amounts.
Please also provide any information showing whether Drugline Lancashire or Renaissance Uk have made any unsuccessful bids for funding from LSCFT/LCFT etc. and the details of those unsuccessful bids, before or after the funding.
Please also provide any information including documentation or emails which explain why the payments were not continued beyond 2021, including any ‘final’ failed or withdrawn bid, or whether no bid or request was received by the Trust for FY 2021 onwards.
Application 2.
Please provide information showing [the Lead Governor] was twice elected as a public governor of LCFT and LSCFT between 2016/17 and 2022/23.
Likewise, please provide the information included in first election documentation for [the former Lead Governor] showing (or otherwise) that he declared to the Trust that he was a Trustee, from 2006, of Drugline Lancashire, and the information included in a similar declaration for his second election in respect of Drugline/Renaissance, then in receipt of LCFT/ LSCFT funds.
Please provide any further information showing [the former Lead Governor] declaring this obvious conflict of interest in any Trust records or documentation, including but not exclusive to, his second election, the annual registers of governors’ interests during his tenure, the regular declaration of interests by governors at the start of each CoG meeting, any such declarations at any other decision making meetings attended by [the former Lead Governor].
Please provide any further information showing this interest being made apparent to the Trust, Trust Board, its members, or the public in any Trust documents or electronic communications presented by the Trust as ‘bios’, ‘pen pictures’, ‘snapshots’ and the like, which purport to represent to the reader [the former Lead Governor]’s interests which inform or may conflict with his responsibilities as a governor or as Lead Governor. Please provide the contents of all such documents and communications relating to [the former Lead Governor] whether or not they include this specific interest as they will illustrate if the interest was or was not being concealed.
In terms of public interest and confidentiality of personal data, much of the information sought is information which has or had to be made available to the public, yet from my searches of the internet it appears that the Trust and [the former Lead Governor] have consistently and deliberately concealed this substantial financial conflict of interest throughout his tenure as a governor and Lead Governor, despite him and the Trust being aware of its significance. Please provide any information showing that this is not the case.
Please note I cannot locate a LSCFT ‘Publication Scheme’ on the internet.
Application 3.
It is apparent that Nominated Governors Ash Ayers and Vicky Shepherd work for organisations in receipt of substantial funds from LSCFT or its agencies or subsidiaries.
Please provide information showing how much (£) the Trust etc. has contributed to each of their organisations each FY for the period commencing two years before each was appointed as a governor through to the current financial year, or any other non-pecuniary financial benefits the Trust has awarded their respective organisations in this period.
Please explain how these conflicts of interest between the Trust and these governors is recorded, published and managed by the Trust and these parties in terms of their ‘independent’ and ‘accountability’ decision making as governors.
Please provide information showing if the Trust has contributed funds or non-pecuniary benefits to any company or organisation associated with any other current or past elected or nominated governor in post since 2018. Please identify the Governor, the relevant organisation and the sums contributed in each FY.
Please advise how the Trust ensures governors have made all relevant declarations of potential conflicts of interest in the period under examination.
Application 4.
Please provide information showing the ‘conflicts of interest’ policies applicable to elected and nominated trust governors since 2018. Please provide a copy of the Code(s) of Conduct applicable to governors since 2018, making clear which version was signed by [the former Lead Governor] when he was twice elected, version was signed by [the former Lead Governor] when he was twice elected, Ms Ayers and Ms Shepherd as appropriate. Ms Ayers and Ms Shepherd as appropriate.
Please provide information which shows that the Trust regards (or otherwise) a governor being a trustee of a charity/ company bidding for or in receipt of regular and substantial bidding for or in receipt of regular and substantial funding from LSCFT/LCFT etc is an obvious and substantive conflict of interest which should be declared by a governor and to which the Trust should be cognisant of at all decision making meetings attended by that governor.
Application 5.
Please provide information held by the Trust showing when and how [the former Lead Governor]’s obvious and, apparently, generally undeclared and unpublished conflict of interest as a charity Trustee bidding for and subsequently in receipt of Trust funds has been given consideration as such by any Trust directors or senior staff, including the company secretariat. This refers to any time since his election, whether between such parties to any time since his election, whether between such parties or with [the former Lead Governor], as governor or Lead Governor, and specifically in respect of the first successful bid for funds and the first half of 2022, being the weeks prior to [the former Lead Governor] relinquishing his position as a Trustee with Renaissance.
This ‘resignation’ occurred during the course of the GGI investigation into the conduct of governors, including his own conduct. I wish to know if this issue of an undisclosed conflict of interest was brought to the attention of GGI by the Trust or [the former Lead Governor] (as Lead Governor and principal complainant) as relevant or otherwise to that investigation as it was equivalent to, if not more serious than and of much longer duration than, the other conflict of interest he had in the matter under investigation, and which had also been improperly managed by him and the Trust.
Re 1-5: public interest issues: That the Lead Governor, as the primary interface between the Chairman and Board and the Council of Governors, and the conduit between the CoG and NHSE for resolving disputes, was apparently concealing from other governors, Trust members and the public at large, that he was Trustee of a charity in receipt of substantial funds from the Trust, funds seemingly associated with his election, and ending only when he was ‘under investigation’ by GGI, is a matter of significant public interest.
These actions call into question the Lead Governor’s judgement, objectivity and integrity, and are compounded, of course, by the GGI investigation finding that he and the Trust had also failed to manage a different conflict of interest in the 2021/22 chair selection process - of him being an associate and very public/social media admirer of one of the candidates, his former ‘boss’ and the policy owner of the unit where he was employed, (and that he appears to have concealed this more significant conflict from GGI as it is unmentioned in their report).
These events suggest [the former Lead Governor] lacks or fails to understand the concept of integrity, and has both very poor judgement in the proper conduct of public responsibilities, is/was ignorant of the Nolan Principles and Trust policies, and may well, as a number of governors believed, “been in the pocket” of the Trust, prepared to surrender his integrity and the interests of CoG and the public it represents for the financial interests of the Drugline/Renaissance charity.
This is of even greater concern as he has since been elected as public governor to another Trust, seemingly believing issues of openness, integrity, accountability, selflessness and transparency are unimportant. Moreover, these failures on his part have passed without sanction by LSCFT, but been rewarded, and may, therefore, be repeated by him in the belief that such persistent and repeated omissions are acceptable.
These applications will be brought to the attention of LTHFT Company Secretary for its own consideration.
Finally, would you please advise whether the apparent failure of the Trust to account for a conflict of interest when awarding funds to a charity associated with the election of a governor is a matter for your internal or external auditors to comment on.