All information concerning functus officio

Nicholas Wheatley made this Freedom of Information request to Parliamentary and Health Service Ombudsman

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was refused by Parliamentary and Health Service Ombudsman.

Dear Parliamentary and Health Service Ombudsman,

1. Would you please provide all advice, notes, documents, emails, and any other records on the subject of "functus officio", or which reference the term "functus officio".

2. Would you please also provide all advice, notes, documents, emails, and any other records which discuss or relate to the point in time at which the Ombudsman's authority over a case has come to an end.

Yours faithfully,

Nicholas Wheatley

informationrights@ombudsman.org.uk, Parliamentary and Health Service Ombudsman

Thank you for contacting the Parliamentary and Health Service Ombudsman’s (PHSO) Freedom of Information and Data Protection Team. This is to confirm we have received your request.
If you have made a request for information under the Freedom of Information Act 2000 or Environment Information Regulations 2004, we will respond to your request within 20 working days in accordance with the statutory time frames set out in both Acts.
If you have made a request for personal information held by the PHSO, your request will be processed as a Subject Access Request under the provisions of the Data Protection Act 2018 and will be responded to within one calendar month in accordance with the statutory time frame set out in the Act.
We may contact you before this time if we require further clarification or if we need to extend the time required to complete your request.
For Subject Access Requests, we will send any personal information via secure email, unless you instruct us differently. To access the information on the email we send, you will need to sign up to our secure email service. Details can be found on our website using the link below:
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InformationRights, Parliamentary and Health Service Ombudsman

3 Attachments

Dear Mr Wheatley

 

RE: Your information request: R0000550

                            

I write in response to your request for information to the Parliamentary
and Health Service Ombudsman (PHSO) which has been handled under the
Freedom of Information Act 2000.

 

Your request has been considered vexatious under Section 14(1) of the
Freedom of Information Act 2000. Section 14 (1) states: ‘Section 1(1) does
not oblige a public authority to comply with a request for information if
the request is vexatious’.

 

Section 14 of the Act allows us to consider the wider interactions with a
requester beyond the parameters of the request itself when determining
whether a request is vexatious.

 

In line with ICO guidance, the request does not have to meet all of the
outlined indicators in order to be determined as vexatious. I consider the
following indicators are met in respect of this request:

 

o Burden on the Authority
o Frequent or overlapping requests
o Disproportionate effort

 

We have taken into account the nature of this request which contains
questions that are of limited value to the wider public. We have also
taken into account the volume and frequency of requests you are
submitting, which are at times overlapping and before we have had an
opportunity to respond to earlier enquiries.

 

We consider that your request is burdensome with a level of unjustified
disruption. To respond to this request is considered to be disruptive,
burdensome and the PHSO would have to expend a disproportionate effort to
meet the request which engages section 14(1) whereby we cannot reasonably
be expected to comply.

 

It is open to you to request an internal review.  You can do this by
writing to us by post or by email to
[1][Parliamentary and Health Service Ombudsman request email]. You will need to specify that the
nature of the issue is and we can consider the matter further. Beyond
that, it is open to you to complain to the Information Commissioner’s
Office ([2]www.ico.org.uk).

 

Yours sincerely

 

Freedom of Information/Data Protection Team

Parliamentary and Health Service Ombudsman

W: [3]www.ombudsman.org.uk

 

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Nicholas Wheatley

Dear Parliamentary and Health Service Ombudsman,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Parliamentary and Health Service Ombudsman's handling of my FOI request 'All information concerning functus officio'.

This request was incorrectly claimed to be vexatious. A previous request for specific information about 'functus officio' (your ref R0000206), received the response that the PHSO did not hold that specific information. This is not an overlapping request but a follow up request seeking more general information that the PHSO may hold regarding how a case is judged to be 'functus officio'.

It was stated in the reply to this request that it is of limited value to the wider public. This is not correct as it is of very great public interest to know when a case is 'functus officio' and no longer within the authority of the Ombudsman as this will affect every single case on which the Ombudsman makes a decision.

It was stated in the reply that this request should be turned down due to frequent or overlapping requests, however no evidence is given to back up this claim. This is the first request I have made in several months, hardly frequent. As stated previously it does not overlap with other requests but follows up a previous request by asking for more information since the information previously requested is not held by the PHSO. As far as I am aware no other requests have been overlapping. If they have then please give details. If the requested information has been produced or is due to be produced as a result of any outstanding requests then please let me know.

It was also stated in the reply that the request would be disruptive, burdensome, and involve disproportionate effort, however no justification for these broad statements was given. It is common for public bodies to reply to broad requests for information and the PHSO has done so on several occasions in the past. There does not therefore seem to be any reason why this particular request should be excessively burdensome, however I am happy to amend the request if you would kindly explain why the request should be so burdensome as it stands.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/a...

Yours faithfully,

Nicholas Wheatley

informationrights@ombudsman.org.uk, Parliamentary and Health Service Ombudsman

Thank you for contacting the Parliamentary and Health Service Ombudsman’s (PHSO) Freedom of Information and Data Protection Team. This is to confirm we have received your request.
If you have made a request for information under the Freedom of Information Act 2000 or Environment Information Regulations 2004, we will respond to your request within 20 working days in accordance with the statutory time frames set out in both Acts.
If you have made a request for personal information held by the PHSO, your request will be processed as a Subject Access Request under the provisions of the Data Protection Act 2018 and will be responded to within one calendar month in accordance with the statutory time frame set out in the Act.
We may contact you before this time if we require further clarification or if we need to extend the time required to complete your request.
For Subject Access Requests, we will send any personal information via secure email, unless you instruct us differently. To access the information on the email we send, you will need to sign up to our secure email service. Details can be found on our website using the link below:
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M Boyce left an annotation ()

Your request is obviously not vexatious, as you very clearly point out.
Section 14 of the FOIA is used to silence those who ask for information that an authority would rather hide. And the PHSO is very good at hiding information.

Nicholas Wheatley left an annotation ()

Yes, it is odd that the request has been labelled vexatious when, as you say, it obviously isn't. Maybe the internal review will correct this!

M Boyce left an annotation ()

With respect, it is not odd at all; it is entirely expected. The use of section 14 is a tried and tested way of shutting down legitimate enquiry that is getting too close for comfort. It was built into the FOIA to act as a 'panic room' for the establishment. Section 14 is such a subjective area, and is drafted in such a nebulous way, that almost any request can be labelled and found as vexatious - and the PHSO's best friend, the ICO, will always make sure that it is 'found' as such.

Nicholas Wheatley left an annotation ()

I was being a bit ironic. I'm sure you know that the Upper Tribunal say there is a high hurdle for a public body to overcome to satisfy the claim that a request is vexatious and this doesn't even come close. Their response doesn't even make sense as they say I'm submitting a volume and frequency of requests before they've had an opportunity to respond to previous requests but this is the first request I've put in for 6 months!

phsothefacts Pressure Group left an annotation ()

Mmm methinks the Ombudsman is vulnerable on this issue and acting defensively to protect itself. Has Mr Behrens overstepped his remit?

M Boyce left an annotation ()

Nicholas, your request is world away from being vexatious, so let's sincerely hope they finally start to see some sense.
PHSOthefacts, Mr Behrens has not only overstepped his remit, he is doing cartwheels over it.

InformationRights, Parliamentary and Health Service Ombudsman

3 Attachments

Dear Mr Wheatley,

 

Internal Review of Freedom of Information Act 2000 Request

 

I write in response to your email of 18 March in which you request an
Internal Review of our response to your request for information.

 

I have reconsidered your correspondence and our response to you.

 

Section 14(1) of the Act does not oblige a public authority to comply with
a request for information if the request is vexatious.

 

I maintain the use of the exemption and do not uphold your complaint. All
relevant circumstances relating to the use of the Section 14(1) were
considered and I maintain the conclusion of the officer who processed your
request that the Section 14(1) exemption applies.

 

It is open to you to complain to the Information Commissioner’s Office
([1]www.ico.org.uk).

 

Yours sincerely,

 

 

Andrew Martin

Freedom Of Information/Data Protection Manager

Parliamentary and Health Service Ombudsman

W: [2]www.ombudsman.org.uk

 

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M Boyce left an annotation ()

So first the PHSO state that they do not hold any information on functus officio in response to a previous FOI request of yours, and now they are claiming that this similar request is vexatious. They know that you know that they DO hold information about this. They also know that their friends, the ICO, will see them right.

Nicholas Wheatley left an annotation ()

That's an exceptionally unhelpful reply from the Freedom of Information Manager. Obviously under strict orders from higher up. Hope you're wrong about the ICO though.

M Boyce left an annotation ()

I sincerely hope I am wrong as well. BUT, section 14 of the FOIA is the ultimate get out of gaol card. Both the ICO and the First-tier Tribunal have described it and used it as such. If you are in gaol, you have usually done something seriously wrong! History shows us that when an organisation investigates itself, or gets another organisation to do mutually reciprocal investigations, it NEVER ends-up with an open and fair decision. Only independent organisations - independent from mutually beneficial influence - can or will be fair in their decision-making.

Nicholas Wheatley

Dear InformationRights,

1. Would you please clarify whether you regard both part 1 and part 2 of this freedom of information request as vexatious or whether you regard only one of the parts of the request as vexatious.

2. Would you please clarify whether there is anything I can change in the request such that it would not be regarded as vexatious.

Yours sincerely,

Nicholas Wheatley

InformationRights, Parliamentary and Health Service Ombudsman

Dear Mr Wheatley

Thank you for your email.

As per our FOI response and the Internal Review decision, your request in it's entirety was refused under Section 14(1) of the Act as vexatious. It is now open to you to complain to the ICO.

Alternatively, you have the option of refining your request. However, we are unable to clarify matters further to assist you with this since the subject of what you are requesting is very broad. We are unable to provide any guarantees to any subsequent request submitted as exemptions may still apply.

You may however wish to review information on our website. For example, your question about when the Ombudsman’s authority over a case comes to an end may be answered by information already published. Our Service Model and information leaflets provide the public with information on who we are and what we do along with detailing our complaints process along with our Review and Feedback process. I have provided some links below to assist you with this:

https://www.ombudsman.org.uk/sites/defau...

https://www.ombudsman.org.uk/about-us/co...

Further information may be located within our Publication Scheme and I have provided a link to this below:

https://www.ombudsman.org.uk/about-us/co...

Yours sincerely

Freedom of Information/Data Protection Team
Parliamentary and Health Service Ombudsman
W: www.ombudsman.org.uk

show quoted sections

M Boyce left an annotation ()

'....MAY be answered by information already published...' And then again, maybe it won't.

Is the Ombudsman functus officio at the publication of the final decision?

Is the Ombudsman functus officio when she decides not to conduct a review?

Is the Ombudsman functus officio at the end of any review?

Is the Ombudsman functus officio at the end of any fresh investigation?

Please don't expect an answer to any of these questions from the PHSO, because you won't get one. What you will get is evasion and contradiction.

Nicholas Wheatley

Dear InformationRights,

To try to address the concerns you have expressed I would like to limit this Freedom of Information request to part 1, for the past 5 years, where the information has not already been requested by FOI request FDN-275088.

So the request I would like to make is now:

1. Would you please provide all advice, notes, documents, emails, and any other records on the subject of "functus officio", or which reference the term "functus officio", made over the past 5 years, where the records are not already subject to FOI request FDN-275088

Yours sincerely,

Nicholas Wheatley

InformationRights, Parliamentary and Health Service Ombudsman

3 Attachments

Dear Mr Wheatley

 

RE: Your information request: R0000686

                            

I write in response to your email to the Parliamentary and Health Service
Ombudsman (PHSO) dated 12 May 2019 requesting information under the
Freedom of Information Act 2000.

 

Request:

 

To try to address the concerns you have expressed I would like to limit
this Freedom of Information request to part 1, for the past 5 years, where
the information has not already been requested by FOI request FDN-275088.

 

So the request I would like to make is now:

 

1. Would you please provide all advice, notes, documents, emails, and any
other records on the subject of "functus officio", or which reference the
term "functus officio", made over the past 5 years, where the records are
not already subject to FOI request FDN-275088.

 

Response

 

The information you request is not held centrally. To try to obtain the
information you request would require the manual inspection of records
held within our records management system. This work would also involve
the manual cross reference of relevant records identified within our
records management system with individual complaint records held within
our case management system. We would have to access both systems to
determine whether information in scope of your request is held, locate the
relevant records and documents before retrieving and extracting the
relevant information and determining if what had been identified was
within the past 5 years.

 

Due to the fact we have migrated to a new records management system since
the time of your last request (FDN-275088), the information is now held
within a different storage facility and not easily accessible. Due to the
volume of information required to be searched, this work would be
extremely time consuming, labour intensive and could not be undertaken
without incurring disproportionate cost. Section 12(1) of the Act has
therefore been applied to your request.

 

If you believe we have made an error in the way I have processed your
information request, it is open to you to request an internal review.  You
can do this by writing to us by post or by email to
[1][Parliamentary and Health Service Ombudsman request email]. You will need to specify that the
nature of the issue is and we can consider the matter further. Beyond
that, it is open to you to complain to the Information Commissioner’s
Office ([2]www.ico.org.uk).

 

Yours sincerely

 

Freedom of Information/Data Protection Team

Parliamentary and Health Service Ombudsman

W: [3]www.ombudsman.org.uk

 

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M Boyce left an annotation ()

As usual the PHSO's response is inconsistent and unconvincing. First they refuse your request as vexatious (section 14 FOIA), and then they decide to use the too labour intensive (section 12) argument. This is not how the FOIA should be used and abused.
If a request is labelled vexatious then this is a very serious issue. It is not acceptable to flip-flop down the beach between different sections of the FOIA. The PHSO have not said why they now regard the request as not vexatious. Why not? The application of sections of the FOIA should be a serious business, and not treated like a stroll by the sea-side.

Nicholas Wheatley left an annotation ()

They are certainly clamping down on FOI requests. It's nice to know that the PHSO are such a public spirited organisation. I wonder how that sits with the consciences of the staff dealing with FOI requests. Workers or functionaries?

At least the person who answered this has a sense of humour. He/she claims that they have apparently migrated to a new record system that has to be manually searched and is held in a storage facility that is not easily accessible. Is this the Fort Knox of information, or a hut on top of a mountain full of paper files?

Nicholas Wheatley

Dear InformationRights,

You seem to be suggesting that your new record management system needs to be manually searched, while your old record management system could be electronically searched.

In that case, to narrow down the request, would you please provide all documents of any kind, including emails, notes, etc, which contain any mention of the term 'functus officio', only from your record management system so no cross referencing necessary, for the period 1 August 2016 to 1 February 2018 (18 months), that have not previously been produced for FOI request FDN-275088.

Yours sincerely,

Nicholas Wheatley

phsothefacts Pressure Group left an annotation ()

I'm laying money on the fact that under the previous data handling system there was no key word criteria storage which would enable them to locate this information without manually opening every file.... 'Don't look, don't see' could be the motto for this organisation.

Nicholas Wheatley left an annotation ()

I see. So actually the new system probably can be searched electronically but they've left all the old information on the old system which is inaccessible and requires manual searches. How convenient.

J Roberts left an annotation ()

The intention to clamp down on FOI/SAR 'complainants' was revealed in this response of 1 November 2018:

'The IA team have seen massive increases in FOI/SAR requests (up over 70% on the same period last year) and just four complainants are responsible for 30% of these. We discussed potential short and longer term measures for dealing with this workload, including the importance of not retaining information beyond agreed retention periods and publishing more data routinely. We also discussed how to address potential vexatious
requests.’

https://www.whatdotheyknow.com/request/s...

Categorizing requests as vexatious is an easy way of kicking the can down the road, so this might be one of the short term measures discussed. Incidentally, the ICO workload has also increased:

' records show that in the financial year 2018 - 2019 the number of information requests handled by the ICO was approximately 54% higher than in the previous financial year.'

https://www.whatdotheyknow.com/request/a...

The PHSO is currently having some difficulties related to staff leave:

'However, I have asked for further clarification on some of its responses and it has requested an extension to the original deadline due to leave. I have agreed the extension.'

https://www.whatdotheyknow.com/request/m...

As to the your response, it is short on evidence. No section 16 advice and assistance either. Remember the Crowthers decision? It dealt with inadequate searches carried out by an authority:

http://www.bailii.org/uk/cases/UKFTT/GRC...

'44. In conclusion on this issue we do not accept that there is cogent or reasonable evidence to support the Trust’s assertion that the searches would have taken over 18 hours, and we find that the aggregated requests could have been responded to without exceeding that limit. We find that the Trust was not entitled to rely on s 12.'

Nicholas Wheatley left an annotation ()

Thanks for the info J Roberts. It's interesting that the CEO and Ombudsman discussed measures "including not retaining information...and publishing more data routinely". I wonder what other "measures" were discussed which were not shared with staff. I doubt very much that the measures included in response to the FOI request were the only ones that were passed on to staff. Even the format of the reply to question 3 of the request doesn't look convincing to me. Where did that quote come from? The CEO's briefing paper? Meeting notes? It seems clear that there is more going on than meets the eye. It's also very revealing that the Ombudsman and the CEO think it is a good idea to get rid of information as soon as possible to try to prevent it being published as a result of FOI requests. Glad to see they are so in favour of openness and transparency!

M Boyce left an annotation ()

Most of the establishment always opposed the introduction of the FOIA over fifteen years ago.

Tony Blair reflected at length that he thought the introduction of the FOIA had been a huge mistake, because he later realised that it could actually be used by the public to hold the establishment to account.

So how did the establishment act to mitigate the public utility of the FOIA?

They stopped recording much of their information.

They started to diffuse any information storage so it would become economically inaccessible under section 12.

They started destroying much of their information.

They started to avoid reaching clear and unequivocal positions/conclusions.

They began to stretch section 42 from a qualified exemption into an absolute exemption.

The establishment are working by hook or crook to attempt to dismantle the FOIA to make sure that accountability and transparency are silenced in well orchestrated and concerted cover-ups and attacks on the FOIA.

J Roberts left an annotation ()

It may be this decision that prompted the PHSO's discussion on how to deal with vexatious requests:

http://www.bailii.org/uk/cases/UKUT/AAC/...

Judge Cragg cites it:

'49. The recent Upper Tribunal case of Cabinet Office v Information Commissioner v Ashton[2018] UKUT 208 (AAC) made clear that s14(1) FOIA can apply on the basis of the burden placed on the public authority, even where there was a public interest in the request being addressed and where there was a ‘reasonable foundation’ for the request'.

http://www.bailii.org/uk/cases/UKFTT/GRC...

M Boyce left an annotation ()

Maybe, but authorities are clearly misusing the FOIA if they are effectively conflating section 14 into section 12. If a request is considered too burdensome to reply to, then section 12 should be used and not section 14. The ICO are fully complicit in this unfair behaviour.
The burden of proof should always lie with the refusing authority, but the ICO always wrongly twists the burden of proof onto the requester. The ICO regard, and apply, the Freedom of Information Act as the Refusal of Information Act. They only ever uphold a very few trivial complaints, and they always do not uphold most cases and the most serious and most publicly important cases. If anyone spends time looking in detail at the thousands of ICO decisions on their website they will see exactly what is going on - it is all there in plain sight.

InformationRights, Parliamentary and Health Service Ombudsman

3 Attachments

Dear Mr Wheatley

Re: Information request reference R0000735

I am writing with regards to your request for information dated 7 June
2019 currently being processed by the PHSO under the Freedom of
Information (FOI) Act 2000.

In accordance with Section 10(3) of the FOI Act it has been necessary to
extend the time for compliance for your request by a further 20 working
days as Section 42 of the Act is applicable. As this is a qualified
exemption this further time is needed to consider the Public Interest
Test. We therefore aim to provide you with a final response to your
request once a decision has been made on or before 2 August 2019.

Your sincerely

Freedom of Information/Data Protection Team

Parliamentary and Health Service Ombudsman

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M Boyce left an annotation ()

?????? Hello, hello is there anybody there?

Section 14 or section 42? Take a stab in the dark.

Section 42 of the FOIA is concerned with legal professional privilege. Not all communications or documents that reference 'functus officio' will involve LPP.

Nonetheless, why do the PHSO now appear to be trying to answer this request?

Nicholas Wheatley left an annotation ()

Perhaps they are just time wasting. I don't think they ever find in favour of disclosing LPP information.

M Boyce left an annotation ()

Oh yes, the PHSO are certainly prevaricating. I wonder why?

The PHSO certainly appear, on the available evidence, to NEVER find in favour of disclosure with regard to legal professional privilege. That should come as no surprise.

What is a surprise is that the ICO have decided on at least 5 occasions to find in favour of disclosure. The DN's are:

FS50386722

FS50402010

FS50590641

FS50558898

FS50443286

The First-tier Tribunal has decided in disclosure in a similar number of cases.

Both the ICO and the Tribunal do however share a schizophrenic approach to section 42. Sometimes they argue that disclosure should only occur on a very exceptional basis, and sometimes they argue that disclosure should occur where it is merited and not predicated on exceptionality.

Sadly, with both the ICO and the FTT whether withheld legal advice is disclosed or not seems to, at least in part, depend on who is making that decision. Give exactly the same case to different case workers or judges and they will often come to completely different decisions. This lack of consistency in approach is a very serious issue. It's partly a lottery on who wins or who loses.

InformationRights, Parliamentary and Health Service Ombudsman

3 Attachments

Dear Mr Wheatley

 

RE: Your information request: R0000735

                            

I write in response to your email to the Parliamentary and Health Service
Ombudsman (PHSO) dated 7 June 2019 requesting information under the
Freedom of Information Act 2000.

 

Request:

 

Would you please provide all documents of any kind, including emails,
notes, etc, which contain any mention of the term 'functus officio', only
from your record management system so no cross referencing necessary, for
the period 1 August 2016 to 1 February 2018 (18 months), that have not
previously been produced for FOI request FDN-275088.

 

Response

 

We have now fully reviewed the information held within our records
management system for the term ‘functus officio’ for the purpose of your
request.

 

With the exception of copies of case law held relating to Balchin and Dyer
which engages section 21 of the Act as it is publically accessible (links
provided below), we are unable to disclose any information to you. This is
because part of the information held referencing this term is confidential
communications between complainants and PHSO relating to specific
complaint cases which engages Section 44(1)(a) of the Act along with
Section 40(2) as it is information obtained for the purpose of an
investigation and third party personal information. The other information
held which references this term is confidential communications between a
client and lawyer which engages section 42(1) of the Act.

 

A detailed explanation and justification of the applicable exemptions is
provided below:

 

Section 44(1)(a) – Prohibitions on disclosure (prohibited by or under any
enactment)

 

Section 44 of the Act, which is an absolute exemption, states that
information does not have to be disclosed under the Act if another Act of
Parliament states that the information requested cannot be disclosed.  The
Ombudsman’s legislation specifies that investigations must be conducted in
private and that information obtained for the purpose of an investigation
may only be disclosed in certain circumstances as set out in Section 11(2)
of the Parliamentary Commissioners Act (PCA) 1967 and Section 15(1) of the
Health Service Commissioners Act 1993.

 

In light of this, the information held which has been classified as
communications (email, letters) from complainants to PHSO about their
complaint case(s) is exempt from disclosure under Section 44 of the
Freedom of Information Act by virtue of Section 11(2) of the Parliamentary
Commissioners Act (PCA) 1967 and Section 15(1) of the Health Service
Commissioners Act 1993.

 

Section 40(2) – Personal information (third party)

 

Section 40(2) of the Act, which is an absolute exemption, states that any
information to which a request for information relates is exempt
information if (a) it constitutes personal data which does not fall within
subsection (1) and (b) either of the first or second condition at (3) or
(4) is satisfied.

 

The information held which has been classified as communications (emails,
letters) from complainants about their complaint case(s) also constitutes
personal data within the meaning of the Data Protection Act (DPA) 2018 and
in particular the personal data of a third party.

 

Disclosing this information into the public domain would be against the
reasonable expectations of the complainants. We do not consider it would
be fair to disclose this information and nor would the individuals have a
reasonable expectation that such personal information would be disclosed.

 

As such, disclosure of this information would not be fair or lawful which
would breach principle (a) of Article 5(1) of the General Data Protection
Regulation (GDPR). Furthermore, the conditions as set out in Article
6(1)(f) of the GDPR are not met. Accordingly, such information is exempt
under section 40(2) of the Freedom of Information Act 2000 by virtue of
section 40(3)(a)(i).

 

Section 42(1) – Legal professional privilege

Section 42(1) of the Act, which is a qualified exemption subject to a
public interest test, states information in respect of which a claim to
legal professional privilege (LPP) could be maintained in legal
proceedings is exempt information.

The information held which has been classified as LPP (inclusive of both
legal advice and litigation privilege) falls within the definition of a
communication under Section 42 as ‘a document that conveys information’
which can include a letter, report, email, me, note of a conversation,
photograph or an audio/visual recording. It also covers communications
which have been made for the main purpose of seeking or giving legal
advice about proposed or contemplated litigation, along with legal advice
where no litigation is in progress or contemplated.

Consequently, all information within scope of your request and categorised
as LPP are considered to be confidential communications with a legal
context between a client and lawyer as per the definition under the Act
made for the dominant purpose of seeking or giving legal advice including
for litigation purposes.  

Accordingly, we have conducted a public interest test and this is outlined
below:

Factors in favour of release

It is recognised there is a public interest in promoting accountability
and transparency about decisions made by a public authority and in this
respect information held referencing ‘functus officio’ with the potential
for this to allow individuals to understand decisions affecting their
lives.

 

Factors against release

The information being considered under this exemption is classified as
LPP. As such, PHSO must have the ability to speak freely and frankly with
legal professionals to obtain appropriate and sound legal advice and this
is a fundamental requirement of the English legal system.

Legal Professional Privilege protects the confidentiality of
communications between client and lawyer. The importance of Legal
Professional Privilege is an important principle, as the first tier
tribunal found in Bellamy v the Information Commissioner and the DTI
(EA/2005/0023) , “…there is a strong element of public interest inbuilt
into the privilege itself. At least equally strong counter-vailing
considerations would need to be adduced to override that inbuilt public
interest”.

We consider it is not in the public interest to disclose into the public
domain information which is intended to ensure confidentiality between
professional legal advisers and their clients (in this case, the
Ombudsman, Complainants and Legal Officers). Disclosure of such
information could materially prejudice our ability to protect and defend
our legal interests and also prejudice ongoing or future litigation.

This approach has been endorsed in the High Court in the case of DBERR v
O’Brien and IC [2009] EWHC 164 QB which confirmed “The inbuilt public
interest in withholding information to which legal privilege applies is
acknowledged to command significant weight”.

There is also a significant public interest in preserving legal privilege.
The Upper Tribunal in DCLG v IC & WR [2012] UKUT 103 confirmed that
privilege has great importance to maintaining a fair and proper judicial
process.

Having considered these factors, I have concluded that the arguments for
withholding the information outweighs any public interest in disclosure
and the information is therefore exempt from release.

 

Below are the links to the published case law which is reasonably
accessible by other means:

 

Balchin: [1]http://www.bailii.org/ew/cases/EWHC/Admi...

Dyer: [2]http://www.bailii.org/ew/cases/EWHC/Admi...

 

If you believe we have made an error in the way I have processed your
information request, it is open to you to request an internal review.  You
can do this by writing to us by post or by email to
[3][Parliamentary and Health Service Ombudsman request email]. You will need to specify that the
nature of the issue is and we can consider the matter further. Beyond
that, it is open to you to complain to the Information Commissioner’s
Office ([4]www.ico.org.uk).

 

Yours sincerely

 

Freedom of Information/Data Protection Team

Parliamentary and Health Service Ombudsman

W: [5]www.ombudsman.org.uk

 

Follow us on

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References

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2. http://www.bailii.org/ew/cases/EWHC/Admi...
3. mailto:[Parliamentary and Health Service Ombudsman request email]
4. http://www.ico.org.uk/
5. http://www.ombudsman.org.uk/
http://www.ombudsman.org.uk/
6. http://www.facebook.com/phsombudsman
7. http://www.twitter.com/PHSOmbudsman
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M Boyce left an annotation ()

Nicholas Wheatley, in your earlier FOI request on functus officio the PHSO stated they held NO information on functus officio. Now they say they hold lots of information. They lied. Clearly both the PHSO review process and the PHSO quashing process both fundamentally involve functus office.

The two cases - Dyer and Balchin - which they provide links to, offer somewhat contradictory views on functus offico. Dyer says that reviews are not legally allowed for and Balchin sits on the legal fence. The crucial paragraph in Balchin is 43:

'I do not consider that certiorari [a quashing order] is necessary if the Commissioner [PHSO] will undertake to reconsider [re-open, not review] his decision. If, however, it is considered that he is functus officio, certiorari must go, with the result that the complaint will remain to be entertained, mandamus will then be unnecessary.'

This confusion and contradiction shows just why the PHSO commissioned legal advice on both the review process and the quashing process has to be made public. The PHSO are determined to hide this legal advice, but they must not be allowed to succeed.

M Boyce left an annotation ()

I wasn't familiar with the Balchin case until now. It does raise some serious questions.
In paragraph 54, the judge basically says it is up to the PHSO to decide how it wishes to interpret the law. This seems to me to be a complete abrogation of the judge's duty.
In paragraph 50, the PHSO state that they cannot reconsider decisions because they are functus officio.

Sometime after this judgement the PHSO decided to do a volte face and started to reconsider its decisions - ignoring its self-declared functus officio status.

What is the world coming to when judges leave it to the PHSO to decide for themselves what is lawful and what is not? This is outrageous. Why can't judges say what is lawful and what is not lawful? Is this not what they are very highly paid for?

Nicholas Wheatley

Dear Parliamentary and Health Service Ombudsman,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Parliamentary and Health Service Ombudsman's handling of my FOI request 'All information concerning functus officio'.

The decision not to release the information requested is incorrect for the following reasons.

Section 44. This only applies to information obtained for the purpose of an investigation. Any other information, including emails about a complaint, discussions about a complaint etc is not information obtained for the purpose of an investigation.

Section 40(2). There is reason to believe that the complainants would give permission for the information requested to be made public. Has any attempt been made to ascertain whether this is the case?

Section 42. The public interest test has not been applied correctly. Over a thousand people apply for reviews of their cases every year. It is clearly in their interest to know whether the PHSO has properly considered the matter of functus officio and is acting lawfully and with integrity.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/a...

Yours faithfully,

Nicholas Wheatley

Dear InformationRights,

It is now 21 working days since I requested an internal review of this FOI request and a response is overdue. Would you kindly let me know when I might expect to receive a response.

Yours sincerely,

Nicholas Wheatley

Nicholas Wheatley

Dear InformationRights,

It is now 37 days since I requested an internal review. Would you please let me know when I might receive a response or whether I should just refer the FOI to the ICO.

Yours sincerely,

Nicholas Wheatley

InformationRights@CMSPHSOLGO.mail.onmicrosoft.com,

Thank you for contacting the Parliamentary and Health Service Ombudsman’s (PHSO) Freedom of Information and Data Protection Team. This is to confirm we have received your request.
If you have made a request for information under the Freedom of Information Act 2000 or Environment Information Regulations 2004, we will respond to your request within 20 working days in accordance with the statutory time frames set out in both Acts.
If you have made a request for personal information held by the PHSO, your request will be processed as a Subject Access Request under the provisions of the Data Protection Act 2018 and will be responded to within one calendar month in accordance with the statutory time frame set out in the Act.
We may contact you before this time if we require further clarification or if we need to extend the time required to complete your request.
For Subject Access Requests, we will send any personal information via secure email, unless you instruct us differently. To access the information on the email we send, you will need to sign up to our secure email service. Details can be found on our website using the link below:
www.ombudsman.org.uk/about-us/being-open...
If you require us to post your personal information to you instead you will need to inform us of this and confirm your current address as soon as possible.

J Roberts left an annotation ()

A thought (disappointing) on internal review:

“23. Finally, we agree with the Commissioner that we have no jurisdiction to review the Commissioner’s approach to whether the PCC has complied with the Code of Practice issued under section 45 FOIA in relation to carrying out an internal review. We note that there is no statutory requirement for the PCC to carry out an internal review under FOIA."

http://www.bailii.org/uk/cases/UKFTT/GRC...

M Boyce left an annotation ()

'...There is no statutory requirement...to carry out an internal review..'

No there isn't, and like the PHSO if they did, such an action could be ultra vires by virtue of the authority being functus officio at that point.

InformationRights, Parliamentary and Health Service Ombudsman

Dear Mr Wheatley

 

RE: Your information request: R0000735

         

I write in response to your email requesting a review of your Freedom of
Information request. Firstly I would like to apologise for the delay in
providing you with your review, this is due to increased amount and
complexity of requests that PHSO is currently experiencing.  

 

You requested:

 

Would you please provide all documents of any kind, including emails,
notes, etc, which contain any mention of the term 'functus officio', only
from your record management system so no cross referencing necessary, for
the period 1 August 2016 to 1 February 2018 (18 months), that have not
previously been produced for FOI request FDN-275088.

 

PHSO responded as follows:

-      We provided you with web links to case law held relating to Balchin
and Dyer which engages section 21 of the Act as it is publically
accessible

-      We withheld any further information from you.

 

We explained that this was because part of the information held
referencing this term is confidential communications between complainants
and PHSO relating to specific complaint cases which engages Section
44(1)(a) of the Act along with Section 40(2) as it is information obtained
for the purpose of an investigation and third party personal information.
The other information held which references this term is confidential
communications between a client and lawyer which engages section 42(1) of
the Act.

 

We provided you with a detailed explanation and justification of the
applicable exemptions. As you have noted in your request for a review,
there is a full and complete history of this request at
[1]https://www.whatdotheyknow.com/request/a...
so I will not reproduce that here.

 

You challenged PHSO’s handling of your FOI request as follows:

 

‘Section 44. This only applies to information obtained for the purpose of
an investigation. Any other information, including emails about a
complaint, discussions about a complaint etc is not information obtained
for the purpose of an investigation.’

 

As we informed you in our original response, the information held within
scope is classified as communications (email, letters) between
complainants and PHSO about their complaint case(s) and is exempt from
disclosure under Section 44 of the Freedom of Information Act by virtue of
Section 11(2) of the Parliamentary Commissioners Act (PCA) 1967 and
Section 15(1) of the Health Service Commissioners Act 1993. Any
communications between a complainant and the PHSO by their very nature are
either in the course of or for the purposes of an investigation and so I
maintain that this exemption is engaged.

 

 

‘Section 40(2). There is reason to believe that the complainants would
give permission for the information requested to be made public. Has any
attempt been made to ascertain whether this is the case?’

 

We informed you in our original response that disclosing this information
into the public domain would be against the reasonable expectations of the
complainants. We did not consider it fair to disclose this information. We
also informed you that we did not think that these individuals would have
a reasonable expectation that their information would be disclosed. We
would not contact complainants to ask them if we could disclose their
personal complaint information in response to an FOI as not only is this
unreasonable, it could also cause harm and distress given the sensitive,
personal nature of most complaints. I maintain the use of this exemption
and would refer you to our published privacy notice which explains to
complainants the limited circumstances in which personal information would
be shared, with whom and why. This does not include responding to FOI
requests which are a disclosure to the world at large.

 

PHSO’s privacy notice can be found here:
[2]https://www.ombudsman.org.uk/about-us/co...

 

 

‘Section 42. The public interest test has not been applied correctly. Over
a thousand people apply for reviews of their cases every year. It is
clearly in their interest to know whether the PHSO has properly considered
the matter of functus officio and is acting lawfully and with integrity.’

 

I have reviewed the public interest test which you are challenging. You
note that over a thousand people apply for reviews of their cases every
year and that it is in their interest that the withheld information is
disclosed.

 

Whilst there may indeed be people whose interests are served by the
disclosure of information about decision that affect or have affected
their lives, that has been recognised in our original response.

 

‘It is recognised there is a public interest in promoting accountability
and transparency about decisions made by a public authority and in this
respect information held referencing ‘functus officio’ with the potential
for this to allow individuals to understand decisions affecting their
lives.’

 

It is possible to identify a potential public interest and to also
acknowledge an opposing and greater public interest that outweighs the
first interest. In your original response, PHSO described the negative
impact on PHSO and our many thousands of complainants, and the wider
impact on the public as a whole. These latter interests, repeatedly upheld
by the courts as referenced in PHSO’s response to your FOI request, were
concluded to outweigh any public interest in disclosure and the
information was therefore exempt from release. I concur with the outcome
of the public interest test.

 

In conclusion, I maintain the use of all exemptions detailed above and I
do not uphold your complaint. It is open to you to complain to the
Information Commissioner’s Office ([3]www.ico.org.uk ).

 

Yours faithfully,

 

Angharad Jackson

 

Angharad Jackson

Data Protection Officer & Assistant Director Information Assurance

Office of the Parliamentary and Health Service Ombudsman

PHSO CityGate

47-51 Mosley Street

Manchester

M2 3HQ

 

[4][email address]

 

References

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1. https://www.whatdotheyknow.com/request/a...
2. https://www.ombudsman.org.uk/about-us/co...
3. http://www.ico.org.uk/
4. mailto:[email address]