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'Statuary Requirement upon the law being broken'.
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18 October 2010
Mr George Cant
Via email ([email address])
Our ref: CS/10/071/ML
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Dear Mr Cant
I refer to your email dated 7 August 2010 requesting a review of Ms Pook's handling of your request for information under the FOIA 2000, lodged through the `whatdotheyknow' website.
Background:
In your initial request dated 13 July 2010 you sought information regarding:
`any and all statuary (sic) requirement or recommendations or corporate responsibility that the LGO officers and staff have if during an investigation, or review, or indeed any dealing of your office, the law is broken by either of the party (sic).'
You further explained:
`Ie, if you see, fraud, embeslement (sic), corruption, but am particularly (sic) interested in falsification of documents provided to your officers, what do you do.?. (sic)'
You also explained that this request was being made of the whole organisation.
That was the entirety of your request.
In her response dated 4 August 2010, Ms Pook explained a number of points in addressing your request:
If the Ombudsman finds evidence to suggest that information provided by the complainant is not correct, this could lead to a decision to discontinue the investigation of their complaint. But it would depend on the circumstances of the case, and it may not amount to the law having been broken;
/…
Similarly, if the Ombudsman found that information provided by the authority was not correct (or there was documentary evidence of lies), this could contribute to a finding of maladministration but again, it would depend on the circumstances of the case, and it may not amount to the law having been broken; and
The Ombudsmen expect public servants to provide accurate information - they have the same powers as the High Court to obtain information - see section 29 of the Local Government Act 1974.
Ms Pook then further explained that the Ombudsmen also have the power to certify an offence in the High Court. In that regard she referred you to s29 Local Government Act 1974.
For your ease of reference she also cited the relevant provisions of s29 Local Government Act 1974:
(8) If any person without lawful excuse obstructs a Local Commissioner in the performance of his functions under this Part of this Act, or any person discharging or assisting in the discharge of those functions, or is guilty of any act or omission in relation to an investigation under this Part of this Act which, if that investigation were a proceeding in the High Court, would constitute contempt of court, the Local Commissioner may certify the offence to the High Court.
(9) Where an offence is so certified, the High Court may inquire into the matter and, after hearing any witnesses who may be produced against or on behalf of the person charged with the offence, and after hearing any statement that may be offered in defence, deal with him in any manner in which the High Court could deal with him if he had committed the like offence in relation to the High Court.
Following this response, on 6 August 2010 you sent a further email to Ms Pook. You queried:
`If one of your officers or Ombudsman sees any of the acts above, they have no obligation to report it to the police or authority's (sic)'; and
`And the above is the only statuary (sic) requirement or recommendations or corporate responsibility that your office hold'.
Review request:
On 7 August 2010 you asked for a review of Ms Pook's handling of your request. Whilst you have provided no discernible reason for questioning how Ms Pook has handled your initial request, you have explained that:
`Please confirm that this is the only legislation/recommendations that your office has to consider, not just what the ombudsman/investigator has consider (sic)'; and
`For your information. I am directly asking in refference (sic) to council officers producing edited documentation to investigators, or, more specificaly (sic), council officers withholding documentation during investigations...'.
Review:
I have reviewed Ms Pook's response. As the information you requested in your initial correspondence dated 13 July 2010 was provided, I can see no basis on which to question Ms Pook's handling of this matter.
As you are aware, everything we do is governed by the Local Government Act 1974.
Ms Pook has already explained what course of action is open to the Ombudsmen acting under that legislation. In particular the Ombudsmen might:
Find maladministration under the specific circumstances you envisage; and
Exercise their power to certify an offence in the High Court where they felt any person (without lawful excuse) was obstructing the investigation.
Furthermore were it proved that a council officer edited or tampered with documents submitted as part of an investigation we would notify the council of such action. As the employer of the officer in question, the council would have disciplinary measures open to it against that individual.
This 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
The official title of the Local Government Ombudsman service is
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