26 July 2010

Mr P Andrews

Via email ([FOI #35839 email])

Our ref: CS/10/047/ML

(Please quote our reference when contacting and, if using email,

please put the reference number in the email subject header)

Dear Mr Andrews

I refer to your email dated 17 June 2010 seeking a review of Ms Pook's handling of your request for information under the FOIA 2000.

Background: initial request

In your initial request dated 23 May 2010 you requested the following information in relation to the London borough of Hillingdon:

This was the entirety of your original request.

Background: initial response

On 10 June 2010, Ms Pook responded to the above-mentioned request.

She provided a full breakdown of complaints dealt with against Hillingdon over the last 5 years.

She also explained that the two reports issued during that time were accessible through our website.

Background: subsequent requests

In your email dated 10 June 2010 you explained:

On 11 June 2010 Ms Pook explained that there are no reports in relation to local settlements.

This led you to request `the closure letters in relation to these local settlements' on 11 June 2010.

Background: subsequent response

In her letter dated 15 June 2010, Ms Pook explained that she could not release the closure letters in relation to local settlement cases against Hillingdon. She stated that:

`The information you have requested includes the contents of complaints files. Although the public do have rights to see information held by public bodies under the Freedom of Information Act, this Act (section 44) does not override any restriction on the release of information covered by an earlier law.'

In this regard Ms Pook explained that such a restriction applies to the Ombudsman's complaint files: section 32(2) Local Government Act 1974.

She further explained that as a result of this provision the Ombudsman can only disclose information in the furtherance of an investigation (or for other limited reasons mostly related to legal proceedings).

As this was not the case in your circumstances, Ms Pook was unable to release the information you requested.

Review request:

In your email dated 17 June 2010 you sought a review of Ms Pook's handling of your request. In particular, you made the following points:

Review:

I have reviewed Ms Pook's handling of this matter. I will address the various points you have made in seeking a review (as outlined above).

The Freedom of Information Act (FOIA) 2000:

The FOIA 2000 is an Act of Parliament and not a European directive. It was initially introduced to the House of Commons on 18 November 1999 and received Royal Assent on 20 November 2000.

You should be able to access an original copy of the Act at:

http://www.opsi.gov.uk/acts/acts2000/ukpga_20000036_en_1

Section 44 FOIA 2000:

Section 44 FOIA 2000 provides that information is exempt from disclosure where prohibited by statute (what is termed a statutory `prohibition' or `bar').

Therefore disclosures which are prohibited by other legal rules are also exempt from the FOIA: the Act does not cut across existing legal regimes which restrict access to information. Nor does the FOIA 2000 provide an alternative means of access to information which is expressly protected.

The ICO has produced guidance on statutory prohibitions/bars which can be accessed at:

http://www.ico.gov.uk/upload/documents/library/freedom_of_information/detailed_specialist_guides/awareness_guidance_27_-_prohibitions_on_disclosure.pdf

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

Mark Lant

Legal Assistant

3

LGO 02 (03/09)