Small claims court to sue government agency?

haz

I paid fees for a Freedom of Information request to a government agency. The documents I requested were incorrectly identified to me by that agency and do not, in fact, refer to me. They have, in any case, refused access on appeal.

Can I take a government agency to the small claims court for the return of the fees? They admit the error in writing. Can I also claim the Information Ombudsman's fee for the enquiry that revealed the error? The total is about 250 euro, but I wonder if government agencies are immune or excluded from small claims court actions.

RainyDay

The Small Claims Court state that they are intended for cases by consumers against businesses, so it might be difficult to sue an agency. Have you tried going through the agency's formal complaints process? Did you ask the Information Ombudsman for advice?

antoinolachtnai

Can you tell me more about the circumstances? Are you talking about documents which are related to you personally? If so, no fee is payable.

Did you ask them to send you the correct documents?

You can appeal to the FOI Commissioner once you have exhausted the appeal process within the department in question.

If you are not happy with the results of that, your recourse would be to the High Court (which I would not recommend if the only issue is fees).

haz

I requested copies of personal documents. "Relevant documents" were identified by the department and listed in a schedule, but copies were not supplied for operational reasons. I requested via FoI and then appealed, paying fees for both, but the documents were refused. When I appealed to the Information Commissioner the department realised that the documents were in fact not relevant and explained how the error arose. The Information Commissioner's judgment says the error should not have occurred and have reminded the department of its obligations, but the issue of repayment of fees is not in their remit.

For a small claims court fee of 15 euro I would pursue it (about 250 euro) if you can claim against government, but I suspect they are immune.

antoinolachtnai

What were the operational reasons for not disclosing them?

You shouldn't have been charged in these circumstances, at least that is my perception.

You should write to the ombudsman, who is the same person as the information commissioner. THe ombudsman can look at the fees issue, even if the information commissioner can't (I think).

Have they searched again to see if they have any other relevant documents?

I know the money is important to you, but realistically, it is a small amount of money in the grand scale of things. I know someone who has run up 10 grand in FOI fees.

Does this case have a wider context? It does sound like the particular department has been messing you around.

Sponge Bob

ah yeah, sue away , it costs only €8 to file the claim and they will not show up so you will win

haz

antoinolachtnai wrote:

What were the operational reasons for not disclosing them?

In the first instance:

"I am enclosing for your information a schedule of the documentation relevant to your request. I am however, refusing access to this documentation under Section 21 of the FOI Act, on the grounds that their release could have a significant, adverse effect on the performance by a public body of any of its functions and/or disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used ot followed, or to be used or followed, for the purposes of any negotiation carried on or being, or to be carried out on by or on behalf of the Government or a public body."

And on appeal:

"In addition to this, I also confirm that access to the records is refused under Sections 27 and 28 of the same Act."

On the Information Commissioner's intervention:

"your correspondence was incorrectly associated with other requests"

You shouldn't have been charged in these circumstances, at least that is my perception.

That is my opinion, although the money is less important than my time and trouble of chasing it if it involves more FoI and Ombudsman correspondence lasting another couple of years. Unfortunately the Ombudsman and Commissioner are the same office, but are functionally separate, so it is effectively a completely fresh enquiry.

In addition to searching again for relevant documents they department has actually commissioned and received a report into my original complaint which has been "under review" for a year and, as above, it isn't worth my time and trouble to FoI.

Does this case have a wider context? It does sound like the particular department has been messing you around.

Yes, the department in question appears to have suppressed disclosure of significant wrongdoing and appears to wish to continue to do so until the imminent retirement of the chief executive, after which this person cannot be called to testify before the Dáil.

My query here is simply whether the department, as provider of a paid service performed to an inadequate standard, is liable to the small claims court - even just for the humour of it at 15 euro.

antoinolachtnai

The short answer is almost certainly 'no'. You could try, and it might be fun, but I would think the clerk or the registrar or judge or whoever would refuse to entertain it. It seems like a bit of an amateurish thing to try.

You might have some luck in the district court. But I couldn't really tell you.

Have you tried making your query by way of parliamentary question?

Also, have you made your concerns known to the C+AG? They won't investigate on your behalf, but they might investigate if there was loss of money to the exchequer.

haz

antoinolachtnai wrote:

Also, have you made your concerns known to the C+AG? They won't investigate on your behalf, but they might investigate if there was loss of money to the exchequer.

Yes, the Public Accounts Committee expressed an interest in the matter. The chief executive in question is scheduled to clarify certain issues capable of conflicting interpretations in his previous testimony, but has tendered his resignation with effect prior to the appearance date.

Yes, the small claims court is an amateurish venture, but I am an amateur. My impression is that legal action against an emanation of the state is likely to be complex and outside my means and inclination. If the government does not have immunity then I would apply a small claim - 250 euro for 15 euro outlay is a reasonable outcome and, as Sponge Bob says, they probably wouldn't turn up. You are right that the Clerk will dismiss it without charging the fee if the action can not be entertained.

Sponge Bob

Sounds like a Comreg cockup to me but basically they wont't show up and you will win:D

Then they have to take you to court to appeal, thats where the fun starts .

They mislead you and took your money under false pretences which is your claim. Possibly read the fraud act (1965 is it ) on civil fraud not criminal fraud .

haz

Sponge Bob wrote:

They mislead you and took your money under false pretences which is your claim. Possibly read the fraud act (1965 is it ) on civil fraud not criminal fraud .

But is an emanation of the State liable to action in the small claims court? I am satisfied that "you, the 'consumer' must have bought goods or services (or the service) for private use from someone selling them in the course of business" is applicable, but don't governments normally exempt themselves from action?

As far as I can tell, I just fill in the form and the Clerk will either accept 15 euro (in which case the 250 euro is mine) or laugh at me. The government department will probably not defend it or appeal.

maireadmarie

If it's as interesting from the point-of-view of wrongdoing as I infer from your post, you should consider giving it to one of the better newspapers! They're good at ferreting out information.

haz

maireadmarie wrote:

If it's as interesting from the point-of-view of wrongdoing as I infer from your post, you should consider giving it to one of the better newspapers! They're good at ferreting out information.

Someone has already done so, my bit-part is a side-show if you look at the hundreds of articles at UCC_Reference.htm. I have just seen "He surprised everybody by announcing his intention of going early next year. The reasons offered by friend and foe alike for his abrupt decision range from the libelous to the ridiculous." in an article "Rumpus on the campus" at the Irish Independent)

antoinolachtnai

Have you suffered serious loss because of this? If you have, you should go and see a solicitor who is experienced in these things.

I really think this fooling around in the Small Claims Court will do you no credit. It would be different if it would achieve something or if there was any chance you could actually win. Losing in court is no fun.

haz

antoinolachtnai wrote:

Have you suffered serious loss because of this? If you have, you should go and see a solicitor who is experienced in these things.

Yes, and it is in train with qualified professionals. The loss preceded and is unrelated in any way to the subsequent actions of the government department's FoI procedures.

The fooling about with the small claims over FoI is a triviality, but in my bilious mind it would bring attention to the department's (possibly deliberate) misinformation. Bitter, moi?!

If, as one poster suggests, the small claim would be unopposed then I would be happy to have my 250 euro back. But is a government department immune to an action in the small claims court?

antoinolachtnai

The relevant SI seems to be S.I. No. 191/1999: DISTRICT COURT (SMALL CLAIMS PROCEDURE) RULES, 1999.

I don't think what you propose will fly because the agency/department/whatever in question never entered a contract with you to supply a service.

You obviously have to decide what you want to do, but it would be very bad form for you to open litigation or other action on another front without at least informing your lawyers about it.

If the misinformation is deliberate (as you think it might be) then the matter isn't really separate, it's tied in with whatever happened and the action you are taking on the main front.

haz

antoinolachtnai wrote:

the agency/department/whatever in question never entered a contract with you to supply a service.

I assumed the application form and acceptance of an FoI fee was contract?

antoinolachtnai wrote:

it would be very bad form for you to open litigation or other action on another front without at least informing your lawyers about it.

Quite right, I will ask their opinion. My alleged loss was caused by a separate entity regulated by a government agency, and the FoI issue (accepting fees in order to refuse access to documents which, on appeal to the Commissioner, the agency admitted had been incorrectly identified as relating to me) is therefore separate.

antoinolachtnai

I wouldn't say that it had the characteristics of a contract because it wasn't freely entered into (because of the law, the agency had no choice but to deal with your FOI request).

Also, it doesn't appear that the department actually requested the money from you or in any way demanded it in order to process the claim. You didn't need to pay them because it was information relating to you.

I still think they should give you your money back, but I don't think this tactic will get you anywhere.

Obviously, you should seek the guidance of our learned friends before you decide anything.

Sponge Bob

they took his money for a service (searching and producing documents) did not produce documents and did not refund him

the contract was simply for the production of an FoI and was a contract once the consideration of €250 was accepted.

its not an administrative law thing at all, classic small claim jobbie and if they do not pay up the OP can send the sheriff in

RainyDay

Sponge Bob wrote:

its not an administrative law thing at all, classic small claim jobbie and if they do not pay up the OP can send the sheriff in

So you just ignore the fact that it doesn't meet the Small Claims Court own definition of their scope;

To be eligible to use the procedure, you, the "consumer" must have bought the goods or services (or the service) for private use from someone selling them in the course of business.

And for the record, the process for enforcing a debt arising from a Small Claims Court claim is a lot more complicated than 'send the sherrif in'

Sponge Bob

He bought a service for private use ( an FoI search) from a government agency which normally sells the service (an FoI search ) in the course of their business. Were FoI searches FREE or SUBSIDISED as they were in the past then they could argue that the cost of blah did not reflect blah. Since they started charging proportional to the real cost of the service its now a commercial service like any other.

As I can legally FoI the exact same information myself from the same agency its a normal service, were it tailored to/available to him only it may not not be a normal service and your argument may hold some water Rainyday .

Essentially FoI has been commoditised by the government and this is a consequence of commoditisation.

Let me quote you back at you for your own benefit Rainyday.

To be eligible to use the procedure, you, the "consumer" must have bought the goods or services (or the service) for private use from someone selling them in the course of business.

Paying full whack for an FoI means he was sold a commercial service. This service was not delivered and the money was not refunded.

Pretty simple really innit!

haz

Sponge Bob wrote:

Paying full whack for an FoI means he was sold a commercial service. This service was not delivered and the money was not refunded.

I see it the same way, the service was paid for (because the ultimately irrelevant records were operationally and not personally related to me) and not delivered. I am genuinely annoyed that I went through an appeal for scheduled documents, a review and the Information Commissioner when it should have been obvious in the first place that the records scheduled were unrelated. The mistake is credible in the first instance, but on appeal someone must have noticed.

But the simple question here is whether there is any immunity - a UK resident would be told that Crown immunity applied, and so far as I can tell (from vague recall) Belgium and the Netherlands would do the same.

Sponge Bob

Crown immunity was inherited by the free state in 1921 but it went out the window here about 35 years ago , I think it was the McMahon case that allowed the citizen to sue the government or its agencies .

RainyDay

Sponge Bob wrote:

He bought a service for private use ( an FoI search) from a government agency which normally sells the service (an FoI search ) in the course of their business. Were FoI searches FREE or SUBSIDISED as they were in the past then they could argue that the cost of blah did not reflect blah. Since they started charging proportional to the real cost of the service its now a commercial service like any other.

As I can legally FoI the exact same information myself from the same agency its a normal service, were it tailored to/available to him only it may not not be a normal service and your argument may hold some water Rainyday .

Essentially FoI has been commoditised by the government and this is a consequence of commoditisation.

Let me quote you back at you for your own benefit Rainyday.



Paying full whack for an FoI means he was sold a commercial service. This service was not delivered and the money was not refunded.

Pretty simple really innit!

I don't reckon the Small Claims Court will see it that way. But if Haz wants to send off his €7, he'll find out for sure. Note that I'm not commenting on how I think the system should work. I'm commenting on my belief of how it does work in practice.