Friday, January 22, 2010

LGO wrongly applying FOI exemptions to block valid requests

When you submit a Freedom of Information to the Local Government Ombudsman they often (wrongly) use two exemptions in an attempt to block your request.

The first one is that the cost of extracting the information would exceed the maximum permitted under the FOI Act. They imply that they would need to search hard copy files to extract the information, ignoring totally that they have a number of computerised systems which makes searching for information very easy. However, they very rarely use this exemption in isolation, they tend to use it in support of another exemption, a kind of belt and braces approach, hoping that if you are not put off with one exemption you may be put off when faced with two.

The second exemption is that the information you seek is exempt from disclosure under Section 44 of the Freedom of Information Act , which states that the Act does not override any restriction on the release of information covered by an earlier law. They usually state the following in an attempt to further frighten you off

"Such a restriction applies to the Ombudsman's complaint files. Under the Local Government Act 1974 (section 32(2)), the Ombudsman is not permitted to disclose any information obtained in the course of, or for the purposes of, the investigation of a complaint, unless he or she considers it is necessary for the purposes of the investigation (or for other very limited reasons mostly related to legal proceedings). Disclosing the information you ask for is not necessary for the purposes of any investigation by the Ombudsman, so I am therefore unable to provide you with it."

However, on many occasions the information you seek was not obtained in the course of, or for the purposes of an investigation. To illustrate my point I refer to two examples

The first one is a request I made to identify how many offences the Local Government Ombudsmen had certified to the high court. Essentially they have the statutory authority to certify an offence should a council officer not cooperate with their investigation. They initially refused to supply the information requested citing the two exemptions above.

Unlike many people who give up at this stage I decided to request an internal review. Due to their delay in carrying out the internal review in a timely fashion I submitted a complaint to the Information Commisioner (ICO)
[Case Reference Number FS50285678]. Within days of the ICO becoming involved I received this response from the LGO. Although they gave me the information requested unfortunately they didn't have the good grace to admit they were wrong (something they very rarely do). They just tried to place the blame on me by implying that my request was not clear enough.

'Having examined your 18 September 2009 request it is not clear that this was the information you were requesting. I consider that Ms Pook provided you with the correct response based on her understanding of your request.'

Which is quite clearly a load of bullshit. The request I made was clear and concise and no clarification was necessary.

"Over the last five years how many certified offences has each LGO brought to the attention of the High Court, how many involved a council member or officer, what were the outcomes and which council did the member or officers work for."

Their attempt to suggest otherwise does them no credit and was used in an attempt to obfuscate their wrongful use of section 44 exemption in denying me the information.

The second example has nothing to do with me and is a Freedom of Information request I recently noticed on the What Do They Know website.

"Please may I ask you to state the total number of complaints/messages you have received to date about or including Camden council officers/managers telling lies or making/giving false allegations."

What struck me is that the LGO's response was very similar to the one I had received. Citing costs and section 44 as a reason for not providing the information. How an earth can information generated before they became involved or even decided to investigate a complaint come under the following section 44 exemption. It's a down right ludicrous proposition.

"Such a restriction applies to the Ombudsman's complaint files. Under the Local Government Act 1974 (section 32(2)), the Ombudsman is not permitted to disclose any information obtained in the course of, or for the purposes of, the investigation of a complaint, unless he or she considers it is necessary for the purposes of the investigation (or for other very limited reasons mostly related to legal proceedings). Disclosing the information you ask for is not necessary for the purposes of any investigation by the Ombudsman, so I am therefore unable to provide you with it."

It is clear that the FOI officer also realises the application of the exemption is wrong when they say to the requester

"If someone made an allegation that a council officer had told lies, we would try to obtain information that either confirmed or refuted that allegation. By definition, that would be 'information obtained in the course of, or for the purposes of, the investigation of a complaint.' So section 44 of the Act applies."

However, the requester is NOT asking for information after the allegations had been confirmed or refuted they merely asked for information regarding the number of allegations. As such section 32(2) does not apply and therefore section 44 of the FOI Act cannot apply. Follow this as it unfolds here

If you feel the LGO has wrongly applied Section 44 of the FOI Act using Section 32(2) of the Local Government Act please do something about it and complain to the ICO. You can do it here. To read a previous decision notice by the ICO which explains just what information the ICO considers is and isn't exempt under Section 44 FOI Act because of Section 32(3) LG Act please download and read this decision notice. (PDF file) Section 21 refers if you don't feel like reading it all.

Footnote: If the LGO have so much difficulty understanding clear and concise FOI requests, clearly don't know how to interpret statutes correctly and won't admit when they are wrong, what hope does a complainant have in getting them to understand more complex issues and do the right thing when they make a mess of their complaint?

No comments:

Post a Comment