Our Ref: SS/CIGT/ FOI3432 Internal Review

Mr Trevor Nunn

Sent via email

Email address: [FOI #20125 email]

Date: 2 December 2009

Dear Mr Nunn

Freedom of Information Act - Internal Review

I write further to your email of 19 October 2009, seeking a review of the decision of the City Council in relation your request FOI 3432.

In considering the terms of your requests, namely:-

Request 1:

Over the last five years

The review panel considered the requests, the responses and the arguments put forward in your subsequent correspondence.

Request 1:

In relation to the first request, “how many Local Government Act Part III Section 32(3) notices have been served, we are advised by the officers responsible for responding to complaints brought to the ombudsman, that they only hold the notices on the complaints file, and that they do not hold the notices in a central file.

Upon receipt of a notice, the ombudsman may seek additional information to allow it to determine whether or not he/she considers the notice is valid, and, due to the potential sensitivity of the information, hence the reason behind issuing a s32(3) notice, the information pertaining to each matter is held on one file in secure storage. Accordingly, it is reasonable to ensure that all the information gathered to respond to a complaint is held in one location and on one file.

Whilst the response makes it clear as to the fact that they do not centrally record how many notices are served under s32(3), it fails to address the issue as to whether the information could be collated from the files, as copies of any notices would be retained on the files. There is no legal requirement to retain or record the number of notices issued under s32(3), as these notices are not judicial notices, but are normally letters setting out the reasons why specific information should be kept confidential and not made public, normally where such information, if released into the public, would be likely to prejudice a criminal investigation or ongoing legal proceedings, e.g. where such documents or information are legally privileged..

However, on discussions with the officers concerned, we are further advised that they normally only hold files for a period of 12 months following the completion of the complaint investigation and determination, where the ombudsman has found no evidence of mal-administration, which mirrors the Local Government Ombudsman's own retention policy. From examining the retention log, we are advised that the Council has handled over 2200 complaints over the last 5 years, and that it holds over 500 complaint files for the last year.

We are advised records are held for longer where it is felt that the individual may be likely to make a further or repeat complaints around the matter(s) in dispute, or where the ombudsman has found grounds to reach a determination of maladministration, which is normally done in the form of a report. Where this occurs, details of the matter, including a copy of the ombudsman's report, is circulated to, inter alios, the Monitoring Officer and the Chief Executive as well as the Council's Audit Committee.

Accordingly, we find that the Council failed to accurately set out the reasons why it was unable to provide the information requested in your first request. However, we find that the Council was unable to provide you with the information requested for a period for 5 years, due to the retention schedule of holding files for normally only one year from a determination being made.

Due to the fact that any s32(3) notice is merely a letter to the ombudsman, and not a formal document, the only way to locate the notices is for an officer to go through each document on the file to locate any correspondence to the ombudsman, and then read each page of those documents to locate and collate the number of notices issued by the Council. Accordingly, the time involved in trying to collate the information would easily exceed the 18 hours threshold. It is estimated that even if we were able to locate every file from archive, and for an officer to go through each file, it would take at least 10 minutes per file. Accordingly, as a de minimis figure, the time involved in collating the information for the last year alone would be over 83 hours (500 files x 10 minutes).

Under the Data Protection and Freedom of Information (Appropriate Limits And Fees) Regulations 2004, a Local Authority is entitled to refuse the request where the time or costs of dealing with a request exceeds 18 hours / £450.

Your request would clearly exceed the 18 hours threshold by a considerable amount.

We are further advised that there is no legal requirement to keep a record of the number of s32(3) notices issued, merely to retain copies of the said notices.

In relation to the second request, in which the Council confirmed that it had not been found guilty of maladministration for serving a s32(3) notice, we have spoken to the officers concerned, who have confirmed that where any determination of mal-administration has occurred, the council retains a copy of the Ombudsman's report setting out the reasons behind the decision and confirming the details of the mal-administration indefinitely.

Therefore, we have no grounds to dispute the information provided, namely that Birmingham City Council has not been found guilty of any maladministration for misusing a section 32(3) notice over the last five years.

Accordingly, we find that the Council acted correctly in respect of responding to the second request, confusing numbered 3.

We are also aware of your subsequent correspondence, indicating that you consider it a breach of legal responsibilities for a local authority to record the fact that statutory notices have been issued.

As stated above, a record of the notice, together with a copy of the said notice, is retained on the council's file pertaining to the complaint, for the duration of the life of the file, which in the case of determinations of maladministration, is normally one year after a determination from the ombudsman. There is no statutory requirement for a local authority to collate the numbers of notices issued, merely to ensure that it retains copies of statutory notices during the life of the matter.

In respect of your allegations that the monitoring officer is not kept aware of any findings of mal-administration, we confirm that the chief executive, the monitoring officer and the council's audit committee are sent copies of all ombudsman reports where there is a finding of mal-administration, and we are confused as to how you can equate the fact that there has not been any finding of mal-administration for misuse of s32(3) notices with allegations that the monitoring officer has not been complying with his legal responsibilities to notify the Council of findings of mal-administration.

If however, you are not satisfied with the City Council's decision, you may apply to the Information Commission for an independent review at the following address:-

The Information Commissioner

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Tele No: 01625 545700

www.ico.gov.uk

Yours sincerely

Varun Shingari

Solicitor