Dealing with withheld information

The request was partially successful.

Dear Parliamentary and Health Service Ombudsman,

The withholding and destruction of files in organisations has reached endemic proportions and continues to disadvantage complainants insofar as their complaints are not upheld on account of the evidence not being available. So long as this problem goes unchallenged, these bad practices will continue for they prove to be most effective in covering up mistakes and thus getting organisations 'off the hook'.

The role of PHSO in addressing this problem is clearly most significant here. If PHSO does not take positive action to address the problem then PHSO is seen as ineffective, colluding with public services and, by virtue of 'turning a blind eye' perceived as participating in a 'cover up.' Worse still, unless attention is drawn to the seriousness of these matters at a very high level and action taken, then there is likely to be the continuing or greater use of these practices as organisations will be safe in the knowledge that the PHSO will not 'dig deep' and, in effect, will let them get away with it.

Please can PHSO therefore inform me what strategies they have devised for a) drawing attention to these shocking practices b) ensuring PASC is fully aware of these practices?

It would clearly be an impossible task to provide precise information of the numbers involved (precisely because the relevant evidence has been destroyed! ). However it should certainly be possible to identify and present information publicly on the number of complainants who claim a) files have been withheld b) files have been tampered with c) files have been destroyed and d)lies have been told. If these facts were then placed in the context of the total number of complaints made to PHSO then it would certainly give Parliament, senior managers and complainants a much better picture of what was actually happening 'on the ground'.

Please can you therefore advise me as to how PHSO is addressing this extremely serious issue? Some idea of the recording mechanisms and strategies for actually addressing these issues would be extremely helpful. To give you an example of the information I seek 'Complainant A states Hospital B has edited some relevant files and removed all the evidence which supports their complaint - Hospital B denies the claim. What action does PHSO then take?

I appreciate each case is individual so please can you respond in general terms.

Yours faithfully,
Mary Rains

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


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phsothefacts Pressure Group left an annotation ()

Mary Raines, you are quite right in asking for this important information from PHSO. Destroying or concealing the evidence should automatically trigger maladministration and sanctions. However phso simply shrug it off and find no case to answer.

My guess is that PHSO will take the maximum time allowed before responding that they do not hold this information and would have to manually search through every case file.....

Fiona Watts left an annotation ()

Well done PHSO The Facts Pressure Group & Mary Rains.
Here we go;

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

CA Purkis left an annotation ()

An extremely relevant request. Upon receiving a Subject Access Request from me, the Home Office chose to ignore the specific request for documents I made. After applying to my local court for disclosure, they first claimed they did not have the information, and then claimed they had destroyed it. When I asked for the evidence of destruction in line with their policy of Management and Destruction, they were unable to provide any, and have simply ignored all my requests to their solicitors. My court case is now pending as we have been through several stages -the most significant being them fighting my request to question the employee who claims to have destroyed my data. They have taken on Barristers to come to court to fight my request for my own data. This has now dragged on for years. It should be very interesting as to the outcome, as I have no intention whatsoever of backing down and will want to know why they have destroyed my data and lied about it. Of course I could have taken this complaint to the PHSO, but as we all know, that would have been fruitless. Despite their loud claims, they DO NOT investigate maladministration - rather cherry picking complaints that make their statistics and surveys - and most importantly - (DJM favourite!) - PIE CHARTS - look good.

Jt Oakley left an annotation ()

Good luck with that one Mary.

I've been trying for years to get the PHSO pay notice to this progressively massive problem for complainants.

And it's not as if they don't understand the problem.

But, as you know, its employees would rather turn their attention to problems overseas in nice warm climates, where holidays can be dovetailed with £9k plus taxpayer paid-for visits than spend any money on screamingly obvious British NHS problems.

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

D. Speers left an annotation ()

Thank you all for your tenacity. I dread to think, if not questioned, would we ever get the truth?

foiofficer, Parliamentary and Health Service Ombudsman

1 Attachment

Dear Ms Rains

 

Your information request: FDN-230792

 

Thank you for your email of 10 August 2015 in which you requested
information regarding the deliberate and unlawful withholding and
destruction of files by public bodies.

 

The information you were requesting was not immediately clear to me,
though I have interpreted your request to be for the following:

 

A)     What strategies have PHSO developed to report publicly on this
issue?

B)     Will PHSO report on this issue to the Public Administration and
Constitutional Affairs Committee (PACAC)? and

C)     How does PHSO address this issue when it is raised in a complaint?

 

I have responded to these queries below, though if there is any other
information you are seeking please let me know.

 

Firstly, in relation to points A and B, we do not hold any information on
this subject.  In the interest of clarity, I can tell you that this is a
matter we have considered, though we have determined that we cannot take
any action at this stage, including reporting either publicly or to
PACAC. 

 

As you have mentioned in your information request regarding point C, it is
not possible to discuss the way this issue is handled in anything but
general terms.  With this in mind, I would firstly highlight paragraph 30
of our Investigation Manual, which deals with gathering evidence:

 

30. We have wide-ranging powers to request information or documents
relevant to an investigation from any person. It may be necessary when
undertaking certain enquiries to cite the Ombudsman’s legal powers. If we
experience difficulties at any stage of an investigation in obtaining
documents or evidence from any party then the case should be escalated via
line management and, where necessary, advice sought from the Legal Team. A
Legal Team briefing note is available on our power to obtain information.

 

I have attached the Legal Team briefing note on our power to obtain
information to this email. 

 

If you have any further queries or would like to ask for a review of my
decision, you can write to [1][email address].

 

Regards

 

David Thomas

FOI/Data Protection Officer

Parliamentary and Health Service Ombudsman

E: [2][email address]

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

 

 

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J Roberts left an annotation ()

'We have wide-ranging powers to request information or documents relevant to an investigation from any person.'

Sounds impressive! Does anyone know how many times these 'wide-ranging powers' have been invoked?

Jt Oakley left an annotation ()

Above: Firstly, in relation to points A and B, we do not hold any information on
this subject. In the interest of clarity, I can tell you that this is a
matter we have considered, though we have determined that we cannot take
any action at this stage, including reporting either publicly or to
PACAC.

::::

So how have they considered the subject? Thought transference?

Since, if there are files on record, they have to tell you if they exist and provide the correct FOIA Section applicable to their retention from you. ,..Which is a tad ironic since your request is about public authorities withholding files.

:::::

Everyone knows that PA's now happily withhold files and get away with it, as there seems to be no policing of this illegal act.

Its now patently obvious to many complainants that the PHSO, which is the only organisation that can winkle them out witheld files, doesn't seem to have kept up with public disquiet on the withholding strategy and prefers to ignore complainants when they state crucial records are being witheld.

The ICO and the PHSO both seem to turn a blind eye by stating ( Duh- catch22) its up to the complainant to provide them with the witheld files to evidence their complaint.

Although I've heard that - through the grapevine.. That the PHSO was to 'dawn raid' one NHS Trust fairly recently.

Whether anything was done without a focus group, committee, expensive telephone survey, consultation with stakeholders and two-year investigation into the possibility of providing a budget for this dawn raid - who knows?

Certainly the PHSO have denied all knowledge of a having ' Table of stats of withholders', which supports the idea that the PHSO prefers to keep wide-ranging powers untouched and unused on a high dusty shelf.

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

Dear Mr Thomas

Thank you for your response and legal briefing note.

You may want to be aware that I raised matters relating to this subject previously (FDN-183928 and FDN-186288) and am well informed of the powers of the Ombudsman. I also remain extremely concerned that the powers in Section 8(2) of the PCA and Section 12 (2) of the HSCA, the equivalent of a High Court Judge, were NOT INVOKED by the Ombudsman during the period February 2011 to April 2014. (I do not have up-to-date figures though suspect the situation has not changed).

During this same period there have also been many avoidable deaths and heartbreaking incidents drawn to the attention of PHSO by way of formal complaint. It remain a very sad fact that due to the lack of available evidence (because files have been withheld or destroyed) many of these complaints are not upheld; the complainant then feels let down and essential reforms do not take place. At the same time PHSO continues to actively encourage dissatisfied members of the public to 'bring' their complaint to them stating that PHSO works 'independently and impartially without taking sides'. Is it really fair to raise the public's expectations in this manner when lying, destruction and concealment of the necessary evidence to prove their complaint is allowed to take place?

I therefore have 3 remaining questions which still have not been clarified:
1. If PHSO is to continue with its claim that it does not 'take sides' then why is it that the powers under Section 8(2) and Section 12(2) are never actually invoked in practice? Without effective challenge the probability of these malpractices continuing in the NHS and public authorities will always remain high.
2. On what basis has PHSO decided to conceal these important issues (the destruction and concealment of evidence) from PACAC and the media? By virtue of its silence (concealment of these issues?) some may claim PHSO is using precisely the same tactics as those failing organisations which are reported to them.
3 Why is it that PHSO still chooses not to record the number of complainants who state that important evidence has been withheld, tampered with etc? Surely this is vitally important data which needs to be collected and fed to Parliament?

I look forward to your response.

Yours sincerely,

Mary Rains

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


Thank you for your e-mail to the Parliamentary and Health Service Ombudsman. This return e-mail shows that we have received your correspondence.

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All email communications with PHSO pass through the Government Secure Intranet, and may be automatically logged, monitored and/or recorded for legal purposes.
The MessageLabs Anti Virus Service is the first managed service to achieve the CSIA Claims Tested Mark (CCTM Certificate Number 2006/04/0007), the UK Government quality mark initiative for information security products and services. For more information about this please visit www.cctmark.gov.uk

Dear Mr Thomas

I thank you for your response of September 8 to my FOI. However I have to express my considerable concern that, despite having 'considered' the issues with regards to the deliberate withholding and destruction of files by public bodies, PHSO has nevertheless still decided not to take any action at this stage nor report this serious matter to PACAC. I should perhaps make you aware that I am already fully informed of the legal powers accorded to PHSO but also know that Sect 8(2) of the PCA and 12(2) of the HSCA (ref. previous FOIs 195224 and 218185) are never used except as an occasional threat.

This issue is so serious that it must not be allowed to continue. It has to be brought out into the open and properly addressed if services are to be improved and citizens treated with the care and compassion they deserve. With its overview of complaints within public services, PHSO is uniquely well placed to draw attention to these issues, monitor the extent to which they continue and thereby ensure the harm and damage caused to individuals is minimised. However in its silence PHSO condones bad practices and prevents necessary reforms within public bodies. Whenever complaints are not upheld due to 'lack of evidence' (which has not been produced) it serves only to compound the distress to those citizens lured into a complaints system purporting to provide an 'excellent service' and treat them 'fairly'!!!

I myself can no longer collude with the 'conspiracy of silence' over these damaging practices and the considerable pain they cause. I may have misunderstood your response (which I have understood to be no action to be undertaken) and will therefore wait a further 4 weeks for PHSO to provide me with greater clarification of the actions and strategies they intend to adopt for dealing with these serious matters. However, if there is no action or appropriate response at the end of this period, I will then feel obliged to bring these matters to the attention of those important others whom I consider will be able to exert far greater power and influence.

Yours faithfully,

Mary Rains

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


Thank you for your e-mail to the Parliamentary and Health Service Ombudsman. This return e-mail shows that we have received your correspondence.

show quoted sections

All email communications with PHSO pass through the Government Secure Intranet, and may be automatically logged, monitored and/or recorded for legal purposes.
The MessageLabs Anti Virus Service is the first managed service to achieve the CSIA Claims Tested Mark (CCTM Certificate Number 2006/04/0007), the UK Government quality mark initiative for information security products and services. For more information about this please visit www.cctmark.gov.uk

phsothefacts Pressure Group left an annotation ()

Mary Rains, what a can of worms this is. The PHSO is not prepared to take any action or report publicly on the many public bodies who withhold or destroy evidence (contrary to the data protection act). Evidence is the cornerstone of a fair investigation yet the Ombudsman is content to stand by and watch as one organisation after another get away with poor practice by refusing to release the data. This would be contempt of court and severely punished in the judicial system. It does beg the question - what is the point of PHSO?

foiofficer, Parliamentary and Health Service Ombudsman

Dear Ms Rains

 

Thank you for your emails of 9 September and 7 October 2015 in relation to
your earlier information request (FDN-230792).

 

I note that in your email of 9 September you asked three further questions
that I have not yet responded to:

 

“1. If PHSO is to continue with its claim that it does not 'take sides'
then why is it that  the powers under Section 8(2) and Section 12(2) are
never actually invoked in practice?  Without effective challenge  the
probability of these malpractices continuing in the NHS and  public
authorities will always remain high.

2. On what basis has PHSO decided to conceal these important issues (the
destruction and concealment of evidence) from PACAC and the media? By
virtue of its silence (concealment of these issues?) some may claim PHSO 
is using precisely  the same tactics as those failing organisations  which
are reported to them.

3. Why is it that PHSO still chooses not to record the number of 
complainants who state that important evidence has been withheld, 
tampered with etc?  Surely this is vitally important data which needs to
be collected and fed to Parliament?” 

 

The Freedom of Information Act 2000 (FOIA) gives a right to recorded
information (section 84).  In accordance with section 1 (1) of the FOIA I
can confirm that the PHSO does not hold any recorded information relating
to your queries.   More generally I cannot add any extra to my previous
response that this matter that has been considered, we will not be taking
action at this stage, including reporting either publicly or to PACAC.

 

I apologise for my delay in responding to you, though I hope this
information helps to draw the matter to a close. 

 

Kind regards

 

David Thomas

FOI/Data Protection Officer

Parliamentary and Health Service Ombudsman

E: [1][email address]

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

 

 

 

 

show quoted sections

All email communications with PHSO pass through the Government Secure
Intranet, and may be automatically logged, monitored and/or recorded for
legal purposes.
The MessageLabs Anti Virus Service is the first managed service to achieve
the CSIA Claims Tested Mark (CCTM Certificate Number 2006/04/0007), the UK
Government quality mark initiative for information security products and
services. For more information about this please visit www.cctmark.gov.uk

References

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2. http://www.ombudsman.org.uk/
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Colin Hammonds left an annotation ()

Thank you Mary Rains for your excellent work. A major problem is there is no way of knowing what information is held, even if a FOI request is accepted, relevant information could be withheld without the knowledge of the complainant, this could be used as a filter to influence or manipulate the complainant to drop the enquiry. In other words there is no way of knowing if all the information was given over in an objective manner or even what information existed in the first place. Also i should mention that as in my case where information under an FOI request was passed over most of the pages were blanked off with one or two lines left showing and so practically useless for obtaining an overall perspective of any quality.

Jt Oakley left an annotation ()

If you make your way to court on FOIA matters .. And I found the court very sensible and not at all discriminating against a member of the public.. Then all the paperwork has to be provided.

It's evidence.

The PHSO was still witholding paperwork, in which it made an unfounded allegation about me, just before the case was held.

The ICO stated that it must provide it, since it was evidence and the ICO lawyer had to defend it in court ( I had evidence to the contrary to the PHSO's statement ) , and the PHSO was then forced to supply it.

Presumably it had thought that it's ' independence ' meant that it could either withold evidence, or could slip it to the Tribunal judges , via the ICO, without providing it to me. And I would be none the wiser.

The ICO lawyer didn't attend court - it may have been out of sheer embarrassment as the evidence was presented to it was weak and, the PHSO had not provided a point by point summary of the FOIA law relating to its opinion,and in parts, simply not true.

It was just not good enough for the PHSO to state.. ' This is our opinion so the court OUGHT to agree with it because we say so' ..which is the biggest problem the PHSO has.... Arrogance.

The evidence that the PHSO had been forced to provide was inaccurate and personally demeaning to me and the court took this into consideration in its criticism of the way the Phso had handled the request.

So the court decided in my favour.

My question is : ' Why is it that public authorities can't apologise for the wrongful attitude they are towards the public - even after a court verdict goes them? '

The answer maybe that the arrogant PHSO regularly ignores the fact that evidence has been withheld( especially from NHS cases) and has taken the view that this is what a government - funded organisation ( supposedly 'independent' because of it's own infallible integrity) should be doing - on behalf of the government.

An attitude with the inbuilt assumption that the government approves of public authorities withholding evidence.

::::

This is the PHSO's own definition of service failure :

M3: Inconvenience or additional time and trouble

This injustice type equates to the ‘inconvenience’ element of our considerations of distress and inconvenience. This may involve any significant diversion of the aggrieved’s time which arose in consequence of maladministration or service failure. Often this will relate to the extent to which the aggrieved has had to unreasonably spend time and effort pursuing the matter complained about, including action under complaints procedures where the body initially fails to give a properly considered response.

::::

And this is what the court had to say about the PHSO:

This Tribunal reminds itself that every is the duty on Public Authorities to assist members of the public in formulating and processing their requests.

On hearing the appellant on the facts of this case we are all the view that more could have been done to assist the processing of this request.

That this was a request with a genuine purpose was acknowledged by the Respondent but this Tribunal adds that the Appellant has satisfied that the need for her persistence, in its various forms as it transpired on the facts is justified by the failure of the Public Authority to respond more comprehensively, effectively, efficiently or adequately.

This is despite the assertion that the value of this particular request maybe or even might be regarded as limited. We have no doubt ( and it seems to be common case) that the motive for the Appellant's request is to generally seek information that would enable her to contact the relevant person, in order to challenge the Review team's decision as they were not answering complaints.

That is what the case is all about.

This failure to act properly or adequately respond to this request led to confusion and frustration and a breakdown in communications such that the Appellant did not seek or deserve.

:::

The PHSO will not accept that the Court criticism of its actions was due to its own actions.

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