"Missing" info in Subject Access Request under DPA

[boldbanana]

I have a fairly fraught relationship with my council and have currently made myself even more popular by raising a complaint about them to the Local Government Ombudsman. The complaint is about the various crap decisions that they have taking regarding my autistic son over the past 6 years. A key part of my complaint centres on the fact that impartial decisions about my son were taken by someone (well, a number of someones) who wasn't impartial.

I have made a SAR which I recently received the "full results" of.

Bollocks! I specifically asked for emails to be included which mentioned me or my son. I know of a number of emails that were sent which have not been included .

Question is, how do I proceed? I will email FOI officer at the council to politely request the rest, but how can I actually force them to give me everything?

I am also worried, as there were references in a number of the emails that were sent across about the 'reasonableness' of my requests (I have asked quite a few FOI questions too, which they've been very awkward about answering) and I am seriously concerned that they're going to brand me vexatious as I imagine that my combined requests this year have taken them a large number of hours to comply with (I could argue that, if they hadn't made so many mistakes and caused me to spend so much time myself then I wouldn't be returning the favour, but they wouldn't care...)

Any thoughts? Thanks in advance.

[MainlyMaynie]

It's possible that they no longer hold the emails which are missing. To establish this, give them specifics of the emails and ask them how the search has been conducted. If the search has been conducted by individuals checking their own email accounts, ask them if the emails will still exist in the 'vault'. You can confirm whether they should still exist by asking them what their email retention policy is. You don't have a right to a review under DP, but can complain to the Information Commissioner.

As for being treated as vexatious, that would apply to your FOI requests only and can't affect SAR. They cannot determine that an individual is vexatious, but they can tell you that any further FOI requests on a specific subject will be treated as vexatious. You have the right to ask for a review and then to complain to the Information Commissioner. If they are raising questions about the reasonableness of your requests, then it seems likely they may do this. However, the limits to determine that a request is vexatious are quite high and they will need to be very sure that they have grounds.

More likely to happen is that they will collate the time taken to answer your requests on a specific subject and refuse to answer any more under the 18 hour rule. The best way to avoid this is to limit the number of requests you make.

I doubt they will be too bothered about the LGO. Either they think you'll have a case and will be extra careful to treat your requests properly or they're convinced you don't have a case and the LGO will agree with them, in which case they won't care.

It might be more productive for you and your son in the future if you could take things back to a less confrontational approach. Have you met with the relevant Head of Department? I'm sure if they think you're already taking up their time then they would be willing to meet and find a more effective way for you all to approach things.

[boldbanana]

Thanks, MM. I will follow your advice wrt the emails etc. I know that they have 'limited contact' with some members of the public re: repeated FOI requests about the same thing. All of mine have been on similar topic but narrow defined areas. I reckon 12 requests in 12 months, possibly 10. I don't think it's excessive but they might. I am also very conscious that my complaint is taking up a lot of their time, especially now that the LGO is going in to meet with them, and I know that my case as a whole is probably taking up a disproportionate amount of time.

I don't want it to be this confrontational. However, this council only ever respond to formal representations. They messed up my son's education a number of times and only ever responded when I filled in formal Tribunal forms or wrote to my MP. Phone calls, letters and emails might as well have not existed. They caused me an inordinate amount of stress for 5 years and then tried to brush off my complaint when I made it. They then offered mediation when I said I would complain to LGO, went through what seemed like a successful mediation process and then refused to follow through with what was agreed verbally in writing, effectively going back on 75% of what was agreed.

So we have tried the meeting with Heads of Service and various other people. Sadly, the problems are systemic and will cost too much to solve (if they were solved, they would also cost the council more money as meeting the needs of disabled children, if done properly, is expensive) and so I can see why they want me to just go away. However, that is my reason for keeping on pushing for the information I need to make my complaint stick and to make people sit up and listen. I won't put up with it for my son anymore but I also don't see why other parents in the area should.

I do think that their plan should have been to stop messing me around maybe 6, 5, 4, 3 or 2 years ago and then I wouldn't have made the complaint or be digging around their internal system information to back that complaint up.

Thanks for the advice - sorry for the long justification!

[MainlyMaynie]

Well they can't count any activity other than finding the information to answer FOI requests towards the amount of time for the 18 hours rule. I'm interested in the 'limited contact' thing, as I'm not sure that is within the bounds of FOI legislation. How do they implement that?

[ZhenXiang]

Complain be specific about what is missing and request an internal review. At the same time contact Information Commissioner to start a complaint as they take ages to action. If you are still not satisfied after internal review go back to ICO and they will deal with it. LGO will not deal with this unless it is poor record keeping at fault, ICO deal will late or incomplete DP and FOI requests. Have made more FOI and DP requests than you plus many more complaints to my Council in last two years have never been accused of being vexatious yet :) They have to by law have enough staff to deal with their legal obligations under the FOI and DP Act's and as you are entitled to see said information under the same law even if you make 30 separate requests for different bits of info. they have to reply. What would they do if 30 people made those 30 requests, claim they had too many and it was taking up too many man hours? Isn't the 18 hour rule per request anyway, it doesn't take long to get emails off a server if they still have them.

[MainlyMaynie]

The local authority are entitled to aggregate the time taken on an individual's FOI requests if they are on the same subject and within a set period of time - many won't, but they are entitled to. Different local authorities will use different triggers for 'vexatious' - it's actually used very rarely. There are limits on how much time a local authority is required to take dealing with an FOI request and the 18 hour rule is part of that.

In this particular case the 18 hour rule and the time taken searching for emails is irrelevant, as it does not apply to DPA requests. There is also no entitlement to an internal review for a data protection request.

[boldbanana]

I suppose it depends if they're entitled to aggregate requests on a broadly similar topic e.g. SEN, as in my case, or not.

The 'limited contact' thing is where they will either not communicate apart from one type of communication e.g. email/ phone or, as in a couple of cases, will not accept any type of communication or allow them near council premises for a set period of time. They've done it to a couple of people and it's quite scary as the people concerned seem to have genuine grievances but have just perhaps gone a little far in communicating them, probably out of frustration. But now they get arrested if they go near the town hall! Very scary in a 'free' society. I don't think it's just about the FOI requests; it applies to all contact. They have a written policy detailing this!

I will complain to ICO if no more is received; the problem is proving that the emails exist if they have deleted them off their machines.

Thanks for the help!

[MainlyMaynie]

Yes, they would probably be allowed to aggregate if all your requests are on SEN. I have seen a similar aggregation which was upheld by the ICO.

Ah, I understand that form of limited contact. I think it's fair enough to restrict abusive people to written contact. The members of staff they're abusive to are probably not responsible for their grievances and people have a right not to be abused at work. They can't necessarily ban people from council premises though as it may be restricting their right to attend council meetings etc. The LGO would expect this to have been considered.

Good luck getting the emails - it probably depends how old they are whether they'll still be retained or not.