Tuesday, July 27, 2010

Why don't the LGO and their staff fully understand the law?

LGO legal assistants don't appear to fully understand the law, more specifically in this case Section 32(2) of the 1974 Local Government Act. Therefore, is it any wonder that Ms Pook and Nigel Karney have also got it wrong in the past. In addition can complainants have any faith in their complaints being handled correctly if the LGO and their staff don't even understand the Statute that governs them?

The following is an extract from a response to a freedom of information request made via the What Do They Know website.

Section 32(2) Local Government Act 1974:

As Ms Pook has explained, everything we do is governed by the Local Government Act 1974.

That Act contains a statutory prohibition on the disclosure of information (s32(2) LGA 1974). This statutory bar maintains that the Local Government Ombudsmen shall not disclose information except in the furtherance of an investigation (or for a number of other limited reasons which do not apply to your request).

Accordingly, we are unable to release information outside the context of an investigation: s44 FOIA 2000 applies and, in respect of information the disclosure of which would breach s32(2) LGA 1974 an ‘absolute’ exemption bites against the right to be given information under FOIA 2000.

In your circumstances you therefore have no rights to the information under the FOIA 2000.

Whilst I appreciate that you have only requested final letters setting out the findings of local settlements (and not the entire contents of complaint files) s32(2) LGA 1974 makes no such distinction.

For these reasons I can see no basis on which to question Ms Pook’s handling of your request.

That concludes the Commission’s handling of this matter. If you consider that I have not dealt with your request properly you can raise the matter with the Information Commissioner (www.ico.gov.uk).

Yours sincerely,
Mark Lant, Legal Assistant

However, Section 32(2) states no such thing. This is what the act actually states.

32 (2) Information obtained [my emphasis] by a Local Commissioner, or any officer of either Commission, in the course of or for the purposes of an investigation under this Part of this Act shall not be disclosed [my emphasis] except—

(a) for the purposes of the investigation and of any report to be made under section 30 or section 31 above; or

(b) for the purposes of any proceedings for an offence under the Official Secrets Acts 1911 to 1939 alleged to have been committed in respect of information obtained, by virtue of this Part of this Act, by a Local Commissioner or by an officer of either Commission or for an offence of perjury alleged to have been committed in the course of an investigation under this Part of this Act or for the purposes of an inquiry with a view to the taking of such proceedings, or
(c)for the purpose of any proceedings under section 29(9) above,

and a Local Commissioner and the officers of his Commission shall not be called upon to give evidence in any proceedings (other than proceedings within paragraph (b) or (c) above) of matters coming to his or their knowledge in the course of an investigation under this Part of this Act.

Therefore there is NO statutory bar on information as such being disclosed, only information obtained by them from others. 
In a previous decision notice the information Commissioner states

"It is the Commissioner’s [Information Commissioner] opinion that section 32(2) LGA does not act as a blanket exemption to all of the information it holds in its complaint file. [my emphasis] Having said this, the Commissioner recognises that information which is not exempt constitutes only a fraction of the information held by the public authority [LGO]." 

In addition the information Commissioner goes on to clearly explains the true purpose of Section 32(2).

The Commissioner considers that the purpose of section 32(2) LGA was to ensure that information pertaining to an investigation carried out by the public authority is kept confidential. Were information obtained in the course of or for the purposes of an investigation released, it could serve to undermine the public  authority’s ability to conduct further investigations and that this would not be in the  public interest. If the various parties involved in the investigation of a complaint thought that information they supply to the public authority in the course of, or for the purposes of, an investigation could be disclosed then they may be less willing to co-operate with any investigation. [My Emphasis]

In this case the LGO did not obtain all of the information requested they created most of it. Unless they are suggesting that the public authority under investigation actually supplied their own outcomes, findings and recommendations?  Therefore, the information in the documents should be supplied with, if necessary, any confidential third party provided information redacted.

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