Tuesday, February 09, 2010

The LGO and their misuse of Section 44 of the FOI Act.

On the 18th September 2009 I submitted the following Freedom of Information request to the Local Government Ombudsman.

'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.'

On the 16th October 2009 I received a response which included the following

'The Freedom of Information Act (section 44) does not override any restriction on the release of information covered by an earlier law. 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). I have decided that releasing this information to you is not necessary for the purposes of an investigation and so I am not able to comply with your request.'

I immediately requested an internal review however, the LGO failed to respond within the time limit prescribed by the Freedom of Information Act so I submitted a complaint to the Information Commissioner.

Following the Information Commissioner's involvement I received a belated response to my request for an internal review from the Local Government Ombudsman.

Whilst I now had the information I sought

'On the basis of the clarification you have now provided, I can advise you that over the past five years there has been no occasion when it has been necessary for an LGO to obtain a direction from the High Court for a council or council officer to provide information requested by the LGO in connection with an investigation.'

I was annoyed at the pathetic attempt of the Deputy Chief Executive and Secretary of the Commission for Local Administration in England (The official name of the Local Government Ombudsman service) to deflect attention away from their earlier misuse of Section 44. The truth was that my Freedom of Information request needed no clarification, it was clear, concise and specific.

Although my complaint regarding the Local Government Ombudsman's refusal to give me the information was no longer valid the part of my complaint regarding their misuse of Section 44 and the delay in responding to my request for an internal review was still valid and on the 9th February 2010 I received the following email from the Information Commissioner's office,

(It makes interesting reading for everyone who feels the Local Government Ombudsman are giving them the run around regarding their freedom of information requests and for those who are unhappy with their internal review response from the Deputy Chief Executive and Secretary of the Commission for Local Administration in England.)

Tuesday, 09 February 2010

Dear Mr Nunn

Your complaint concerning the Local Government Ombudsman (LGO)
Our reference: FS50285678
Freedom of Information Act 2000 (the Act)


Thank you for your email dated 4 February 2010 confirming the scope of your enquiry. Your two main concerns in this case have been discussed with and noted by our Good Practice and Enforcement team. They may be summarised as follows:

1. The LGO’s initial interpretation of your information request and the apparent blanket application of section 44 of the Act.

2. The delay in conducting the internal review

The LGO’s initial interpretation of your information request and the apparent blanket application of section 44 of the Act.

On 18 September 2009 you requested;

“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.”

The LGO responded on 16 October 2009 by stating that all elements of the request were being refused under section 44 of the Act; the relevant statutory prohibition being section 32(2) of the Local Government Act 1974. It said that information obtained in the course of or for the purposes of an investigation of a complaint was excluded from disclosure unless specific conditions were met. It did not seek clarification from you regarding the information being sought, presumably being satisfied that the request could be read objectively as being information obtained in relation to complaints.


You requested an internal review on 18 October 2010 explaining that were not asking for information obtained in the course of or for the purposes of an investigation of a complaint; merely, the number of times each Ombudsman had so much difficulty obtaining information for the purpose on an investigation that they had to certify an offence to the High Court.

The LGO wrote to you on 11 January 2010 with the outcome of its internal review. It said that your email dated 18 October 2009 had effectively clarified the original request and based on this clarification it was able to answer your request from its legal adviser’s recollections as it did not keep a separate record of the information requested. It advised that over the last five years there were no occasions when it had to obtain a direction from the High Court. However, it did point out that the identities of any council or council employee involved would be exempt under section 44 as this would amount to information obtained during the course of an investigation. The LGO further advised that the original response was correct based on its understanding of your request.

I have discussed the matter with a colleague in our Good Practice and Enforcement team and he agrees with me that on an objective reading your request was quite unequivocal. Effectively you were asking for the number of times the LGO had to obtain a direction from the High Court. It is therefore a little confusing as why the LGO interpreted the request in the way it did. It obviously believed that its objective reading of the case was that you wanted to know information obtained in connection with a complaint. It seems that it did not believe the request was unclear as it did not request clarification of the request as it is entitled to do under section 1(3) of the Act. Furthermore, it does not appear appropriate that it should seek to apply section 44 in a blanket manner. It was been cautioned about doing this in the past by the ICO. See the Commissioner’s decision in case FS50094124 (specifically, paragraph 17).

The delay in conducting the internal review

The internal review was requested on 18 October 2009 but the review was not completed and the outcome advised to you until 11 January 2010, some 57 working days later. This does not conform with Part VI of the section 45 Code of Practice which states that complaints procedures should promote a ‘prompt determination’ of complaints. Furthermore, the time taken to complete the internal review was outside the Commissioner’s standard target of 20 working days. See his Guidance on Internal Reviews and Time limits for carrying out Internal Reviews which specifies that a reasonable time in which to carry out an internal review is 20 working days from the date of the review request. Furthermore, although the Commissioner recognises that there may be ‘exceptional circumstances’ which would result in the review taking longer, he does not believe that the time involved should be any more that 40 working days. There is no evidence in your case that there were any exceptional circumstances.

Next steps

The procedural deficiencies outlined above have been noted and recorded by our Good Practice and Enforcement team in their referral log. Furthermore, a letter will to sent to the LGO drawing its attention to these deficiencies and reminding it of the caution issued in the Commissioner’s decision in case FS50094124.

Yours sincerely

********************[I have removed the name of the particular Senior Complaints Officer]
Senior Complaints Officer
Information Commissioner's Office

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