Dear Ms Lay

Freedom of Information Act Request - Information about Inside Track/Instant Access   

Thank you for your request for information received here on 16 April. In this request you asked the following question:

"Under the Freedom of Information Act I would like to know if the property company Inside Track /Instant Access are being or have been investigated and what the results were.”

As your request seeks information we may hold, we are treating it in accordance with the terms of the Freedom of Information Act 2000 (FoIA) and where appropriate the Enterprise Act 2002.

Response to your request for complaints and other information held by the OFT

The Office of Fair Trading (`OFT') (which includes Consumer Direct) neither confirms nor denies it holds information falling within the description specified in your request. The duty under Section 1(1)(a) of the FoIA does not apply, by virtue of Section 44 of that Act. This response should not be taken as an indication that the information you requested is or is not held by the OFT.

OFT Policy

It is OFT's policy that, due to the legislative constraints of Pt 9 of the EA 2002 which relate to the `Restrictions on disclosure', requests for complaints, including whether or not the OFT holds complaints about a business or businesses, as well as the details of the complaints or numbers of complaints, should be refused. We also do not provide information on enquiries or investigations undertaken by the Office unless they result in formal action being taken and/or a press release being issued. If you go to http://www.oft.gov.uk/ and search under “press releases” you can check if either of these traders have ever been the subject of formal action by the OFT.

By way of explanation, the OFT considers that confirming whether or not it holds information about enquiries or investigations with traders would, in any case, be likely to prejudice the exercise of its functions for the following purposes, namely ascertaining whether:

(b) any person is responsible for improper conduct; or

(c) circumstances exist which would justify regulatory action in pursuance of any enactment.

That is, the OFT depends on its ability to correspond as freely and frankly as possible with traders generally in order to investigate their conduct in matters affecting consumers. It considers that traders generally would be substantially less likely to engage in such correspondence if its existence could be liable to disclosure under the FoIA. It therefore also considers that the section 31 exemption is applicable, whether or not it holds information relating to any trader (and its application is no indication whether or not information is held).

The OFT acknowledges that section 31 of the FoIA is subject to a public interest test. It also acknowledges that there may, in some cases, be a public interest in disclosing whether or not it holds information about action it has taken or is considering. However, there is a competing public interest in maintaining the OFT's ability to investigate matters with traders generally. The OFT considers that this favours the maintenance of the section 31 exemption as applied here.

Why is this our policy?

The FoIA allows anyone the right to ask for information held by the OFT and the OFT is required to provide that information unless there is a good reason for not doing so.  Section 44 of the FoIA is an absolute exemption which states that information is exempt from disclosure if its disclosure is prohibited by or under any enactment. Complaints information that is received by the OFT and Consumer Direct is done so in accordance with our powers under the Enterprise Act 2002 (EA 2002). Part 9 of the EA 2002 prohibits the disclosure of specified information. Specified information is information which comes to a public authority in connection with the exercise of its functions. Details of complaints and/or the number of complaints received by the OFT about a business or individual constitutes specified information and is consequently prohibited from disclosure by the EA 2002 and exempt from disclosure by virtue Section 44 of the FoIA. You should be aware that Section 245 of the EA 2002 makes it an offence to unlawfully disclose information to which Part 9 of the EA 2002 applies and is punishable on conviction to imprisonment or a fine or both.

You may be interested to known that on a number of occasions the refusal to supply complaints information by the OFT has been appealed to the Information Commissioner and the Information Tribunal. Both the Information Commissioner and the Information Tribunal have upheld the OFT's interpretation of the prohibition on disclosure and have confirmed our view on refusing to supply details of complaints.

I am sorry that I am unable to provide you with the information you requested on this occasion but, as I hope you can see from the information above, there are significant restrictions placed on the OFT in relation to the disclosure of the information of the type you request.

Appeals procedure

If you wish to complain about the way in which your request for information has been handled, you may seek an internal review by writing to:

The Internal Review Co-ordinator

Room 4C/046
Office of Fair Trading

Fleetbank House

2-6 Salisbury Square

London EC4Y 8JX 

You may alternatively send an e-mail to [email address]

We will deal with your complaint within 25 working days of receipt or, if this is not possible, advise you of a date by which we expect to have completed a review of your complaint.

If you remain dissatisfied with the OFT's response you have the right to complain to:

The Information Commissioner

FOI/EIR Complaints Resolution

Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire SX9 5AF

Yours sincerely

Nigel Bussey

Information Access Team

Office of Fair Trading

Office of Fair Trading

Fleetbank House

2-6 Salisbury Square

London EC4Y 8JX

Switchboard: (020) 7211 8000

www.oft.gov.uk