Dear Parliamentary and Health Service Ombudsman,

In his letter of 1 February to Bernard Jenkin at PACAC relating to withdrawing reports, Mr Behrens stated that "Following careful consideration of the issues by our legal team and senior colleagues, I am now able to update you on what our approach will be in relation to such matters going forward". A link to the letter is shown below.

https://www.parliament.uk/documents/comm...

a) Please provide all advice, notes, documents, emails etc. from colleagues, the legal team, and Mr Behrens relating to withdrawing or quashing reports.

b) Please also provide the same advice, notes, documents, emails etc. from colleagues, the legal team, and previous Ombudsmen, relating to withdrawing or quashing reports, particularly any advice, notes, documents, emails etc. suggesting reports could not be withdrawn or quashed.

c) Please provide details of how a final report is treated when, after review and further investigation, it is superseded by a second report in which the outcome of the investigation is changed from "not upheld" to "upheld"

Yours faithfully,

Nicholas Wheatley

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


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InformationRights, Parliamentary and Health Service Ombudsman

Dear Mr Wheatley

PHSO reference FDN-275088
Your request for information

Thank you for your correspondence of 25th February 2018 in which you requested information from the PHSO.

Your request shall be handled under the provisions of the Freedom of Information Act 2000. A response shall be issued on or before 23rd March 2018.

Regards,

Freedom of Information/Data Protection Team
Parliamentary and Health Service Ombudsman
E: [email address]
W: www.ombudsman.org.uk

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InformationRights, Parliamentary and Health Service Ombudsman

Dear Mr Wheatley

PHSO reference FDN-275088
Your request for information

Thank you for your request of 25th February 2018.

I would be grateful if you would clarify whether items a) and b) of your request applies explicitly to the Ombudsman's letter of 1st February 2018 or whether the scope went beyond that to any potential information held.

Please note that under section 1(3) of the Freedom of Information Act 2000 - where a public authority reasonably requires further information in order to identify and locate the information requested, and has informed the requester of that requirement - the PHSO is not obliged to comply with section 1(1) of the Freedom of Information Act 2000 unless supplied with that further information. In effect, no response has to be issued until further clarification has been provided.

Regards,

Freedom of Information/Data Protection Team
Parliamentary and Health Service Ombudsman
E: [email address]
W: www.ombudsman.org.uk

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Nicholas Wheatley

Dear InformationRights,

Thank you for your request for clarification. The scope of the request covers all information held which relates to the ability of the Ombudsman to withdraw or quash reports. The reference to the letter from Mr Behrens was to provide the context for the request. Part a) refers to all information relating to the recent decision to allow withdrawal or quashing of reports and part b) refers to all information relating to the original decision under a previous Ombudsman disallowing withdrawal or quashing of reports.

Yours sincerely,

Nicholas Wheatley

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


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InformationRights, Parliamentary and Health Service Ombudsman

Dear Mr Wheatley

Thank you for your prompt response and the clarification. I shall proceed with the request as you have outlined.

Regards,

Freedom of Information/Data Protection Team
Parliamentary and Health Service Ombudsman
E: [email address]
W: www.ombudsman.org.uk

show quoted sections

InformationRights, Parliamentary and Health Service Ombudsman

Dear Mr Wheatley

PHSO reference FDN-275088

The PHSO holds information relevant to your request.

This information engages Sections 36(2)(b)(ii), 36(2)(c), and 42(1) of the Freedom of Information Act 2000. We require more time to determine whether or not the balance of the public interest lies in maintaining these exemptions. As per Section 10(3) of the Freedom of Information Act 2000 the time for our response has been extended an additional 20 working days from 23rd March 2018 to 24th April 2018.

Regards,

Freedom of Information/Data Protection Team
Parliamentary and Health Service Ombudsman
E: [email address]
W: www.ombudsman.org.uk

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1 Attachment

Dear Mr Wheatley

 

PHSO reference FDN-275088

Your request for information

 

Thank you for your request of 25^th February 2018 in which you request
information from the PHSO.

 

 

PHSO response

 

The PHSO holds information relevant to your request. The held information
engages the following exemption from Part II of the Freedom of Information
Act 2000:

 

Section 36(2)(b)(ii) – free and frank exchange of views for the purposes
of deliberation

Section 36(2)(c) – prejudice effective conduct of public affairs

Section 40(2) – third party personal data

Section 42(1) – legal professional privilege

Section 44(1)(a) – disclosure prohibited by any enactment

 

 

Section 36

 

For some of the information that engages section 36 of the Freedom of
Information Act 2000 the balance of the public interest favours disclosure
of the information. Please see attached for copies. Please note that where
members of staff of a junior grade have been identified their name and
contact details have been removed as per section 40(2) of the Freedom of
Information Act 2000 as it is third party personal data and disclosure
would not be fair as per the first data protection principle.

 

For the remainder of the information that engages section 36 of the
Freedom of Information Act 2000 the public interest favours maintaining
the exemption. We have considered the following factors when determining
the balance of the public interest:

 

Factors in favour of disclosure:

 

o Transparency in decision making: decision has already been taken, and
publically announced.
o Accountability for decision: this will have a wide impact on PHSO’s
service. It has the potential to have impact on complaints brought to
PHSO and the way final reports are handled.

 

Factors in favour of maintaining the exemption:

 

o Safe space: whilst decision had been taken, the request follows only
three weeks from the announcement before PACAC. There is a public
interest in allowing public authorities to make decisions without
complete scrutiny of all available information.
o Transparency partially met: the letter to Bernard Jenkin MP is
publically available and outlines the reasons why the decision has
been made. This goes towards meeting the requirement for transparency.
o Free & frank: discussions are amongst senior members of staff
concerning a pivotal decision for the PHSO with wide-ranging
implications. It is vital that this is preserved in the immediate
aftermath of the decision being made as to not deter members of staff
from having these discussions. 
o Qualified Person’s opinion: the reasonable opinion of the qualified
person adds further weight to maintaining the exemption.

 

 

Section 42

 

Some of the withheld information concerns information in respect of which
a claim to legal professional privilege could be maintained in legal
proceedings. None of this information can be disclosed. We have considered
the following factors when determining the balance of the public interest
for this exemption:

 

Factors in favour of disclosure:

 

o Transparency in decision making: there is a public interest in seeing
what legal advice was sought in making this decision.

 

o Legal professional privilege: there is always a strong argument in
favour of the general principle of persons obtaining legal advice for
the administration of justice.
o Transparency partially exemption: that the exemption is cited confirms
that legal advice was sought. Beyond this any further transparency
would undermine the basic general of legal professional privilege.
o Timing of request: the advice is still current, and so there is a
strong argument in ensuring that it is protected.

 

 

Section 44

 

Some of the withheld information concerns PHSO investigations and so are
exempt under section 44(1)(a) of the Freedom of Information Act 2000 by
virtue of section 15(1) of Health Service Commissioners Act 1993. 

 

Under section 44(1)(a) of the Freedom of Information Act 2000 information
is exempt from disclosure if it is prohibited by or under any enactment.
Section 15(1) of the Health Service Commissioners Act 1993 states that
information obtained for the purposes of an investigation shall not be
disclosed unless one of three conditions is met. In this instance none
have been.

 

Please note that section 44 of the Freedom of Information Act 2000 is an
absolute exemption, and so there is no requirement for consider the
balance of the public interest in disclosure.

 

 

Right of appeal

 

If you have any queries about this letter, please contact the Information
Rights Team. Please remember to quote the reference number above in any
future communications. If you are unhappy with the service you have
received in relation to your request or wish to request an internal
review, please respond to this email and explain why you are dissatisfied.

 

If you are not content with the outcome of your internal review, you may
apply directly to the Information Commissioner’s Office for a decision.
Generally, the Commissioner will not make a decision unless you have
exhausted the complaints procedure provided by the PHSO. The Information
Commissioner’s Office can be contacted at:

 

The Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

 

[1]https://ico.org.uk/

 

Regards,

 

Freedom of Information/Data Protection Team

Parliamentary and Health Service Ombudsman

E: [2][email address]

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

 

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J Roberts left an annotation ()

"'s usual hourly rate is £275 plus vat."

If the PHSO had to fight a lot of upheld complaints in the courts the costs would soon mount up.

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 'Quashing reports - advice from legal team and senior colleagues'.

The request for an internal review is based on the following facts:

1. No substantive information has been disclosed, and the information that has been disclosed is mainly irrelevant and only refers to part two of my request.

2. No information has been disclosed that relates to part one of my request.

3. No information has been disclosed that relates to part three of my request. The extensive references to a previous FOI request – “FDN-274362 Freedom of Information request - Ombudsman powers to reopen an investigation” do not disclose the relevant information requested, namely, how a final report is treated when it is superseded by a subsequent report in which the result is changed from “not upheld” to “upheld”.

The basis for the appeal is that there is a VERY STRONG PUBLIC INTEREST in disclosing the information for the following reasons:

a) Transparency. It is claimed in your response that “the letter to Bernard Jenkin MP……outlines the reasons why the decision has been made.” The letter fails to do this. The Ombudsman himself states at the beginning of the letter that “I am now able to update you on what our approach will be in relation to such matters going forward”. He goes on to state the historic position and the new approach, simply stating “having taken further advice I have concluded that……it is possible for the Ombudsman to decide to 'quash' a report”. No reasons are given. In the interests of transparency, accountability and for public understanding it is in the public interest that this information is disclosed.

b) Good decision making by public bodies. It is in the public interest to disclose the information so that the public may have confidence that the decisions made were sound and the decision making process rigorous.

c) Upholding standards of integrity. It is in the public interest to disclose the information to avoid any suspicion that the decisions taken might have been expedient, opportune, and lacking in integrity.

d) Ensuring justice and fair treatment. Since the PHSO has an important role in dispensing justice, and since, as you have stated, these decisions will have an impact on complaints brought to the PHSO, it is in the public interest to disclose the information to ensure that complainants receive justice and fair treatment.

e) Public understanding. Since there has been a sudden reversal in the way legislation is interpreted and policy executed, and since the PHSO is not open to scrutiny through any other method than Freedom of Information requests (other than brief annual scrutiny by select committee), it is important for public understanding of the decisions and for public confidence that the information is disclosed.

The response to the FOI request FDN-274362 states that no statutory power exists to allow the Ombudsman to apply to the courts to set aside an investigation or to prevent the Ombudsman from unilaterally making the decision to withdraw a report. It is therefore in the public interest for public understanding and to ensure justice and fair treatment and good decision making by public bodies that the information is disclosed and the reasoning behind the decisions made available in the public domain.

f) Accountability. Since there is no other form of accountability or means of scrutiny other than a brief annual scrutiny session in front of a select committee, and since, as you have stated, these decisions will have an impact on complaints brought to the PHSO, and also on the fair treatment of complainants, it is in the public interest for this information to be disclosed.

g) No other means of scrutiny. Since there is no other means of scrutiny other than the brief annual scrutiny by the select committee, Freedom of Information requests are the only means by which the PHSO may be scrutinised.

h) Legal professional privilege. Since the legal advice sought would have been for the interpretation of legislation for operational and strategic purposes and not for litigation purposes, it is in the public interest in order to ensure justice and fair treatment for complainants and for public understanding of the way that the legislation is interpreted, that legal advice is disclosed in this case.

i) Free and frank exchange of views for the purposes of deliberation. Since the exchange of views presumably involves the interpretation of legislation and the effect that this has on the public as complainants, and since names may be redacted from documents, it is not evident why the exchange of views would be inhibited by the disclosure of this information. Not disclosing the information would however inhibit public understanding of, and confidence in, the PHSO, which is not accountable through other means of scrutiny (other than brief annual scrutiny by select committee).

j) Prejudice effective conduct of public affairs. You haven’t offered any explanation for why this might be the case.

k) Safe space. It is not evident why there is a safe space requirement. However, to avoid any problem, I would like to limit the information requested to that produced prior to the date of the letter to Bernard Jenkin MP, that date being 1 February 2018.

l) Timing of request. It is not evident why the timing of the request is an issue. However, to avoid any problem, I would like to limit the information requested to that produced prior to the date of the letter to Bernard Jenkin MP, that date being 1 February 2018.

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

Yours faithfully,

Nicholas Wheatley

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


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J Roberts left an annotation ()

You might be interested in this decision:

"24. The argument as to disclosure producing a “chilling effect” upon future advice or discussion has been ceaselessly presented to this Tribunal since it began its work in 2005. It is regularly advanced by government departments and other public authorities. Of course, each case must be scrutinised on its particular facts. Nevertheless, after thirteen years, no public authority has adduced before this Tribunal Judge or members evidence of research or even anecdotal evidence demonstrating that disclosure of advice or expressed opinions by civil servants or administrative staff has had or is likely to have had such an effect. Indeed, we are unaware of any published research supporting that contention. That does not mean that no such effect can occur, rather that it cannot be plausibly assumed as an unproven axiom of the behaviour of responsible advisers or officials dealing with sensitive and momentous public issues. They may well be more resilient and independent – minded than such arguments assume. "

http://informationrights.decisions.tribu...

Nicholas Wheatley left an annotation ()

Thanks for the info and link J Roberts. Very interesting. There seems to be a standard approach taken by public bodies when responding to FOI requests and they don't want to disclose anything.

Nicholas Wheatley

Dear Parliamentary and Health Service Ombudsman,

It is now 23 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 faithfully,

Nicholas Wheatley

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


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InformationRights, Parliamentary and Health Service Ombudsman

Dear Mr Wheatley

 

Thank you for your email.

 

I can confirm that your internal review request is being processed by
someone who was not involved in the original request. Whilst we do
endeavour to ensure reviews take no longer than 20 workings days, in this
case we need to extend the time needed to 40 working days which is in
accordance with ICO guidance for exceptional circumstances.

 

We therefore aim to provide you with a response on or before 5 July 2018.
 

 

Yours sincerely

 

Freedom of Information/Data Protection Team

Parliamentary and Health Service Ombudsman

 

 

 

show quoted sections

Nicholas Wheatley

Dear InformationRights,

It is now more than 40 days since I requested an internal review. Would you please let me know when you will be providing a response.

Yours sincerely,

Nicholas Wheatley

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


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M Boyce left an annotation ()

Nicholas Wheatley, you made an FOIA request recently about upheld and partly upheld reviews. The PHSO sent you a spread-sheet with this 'information'. I cannot understand where the information is on this spread-sheet on partly upheld reviews. Can you? The information says that some reviews were upheld and then received fresh investigations, some of which were THEN subsequently partly upheld. Where does it say how many reviews (as opposed to fresh investigations) were partly upheld?

Nicholas Wheatley left an annotation ()

Hi M Boyce. The information is poorly presented. I read it that all the reviews on the partially upheld spreadsheet are partially upheld (even though it says that 2 aren't). This means the numbers don't correlate with the annual report so I will be putting in another FOI to try to straighten it all out. What is certain is that an upheld or partially upheld review does not necessarily lead to a new investigation or to a change of decision. If the figures are correct then of the 59 reviews upheld or partially upheld over 3 years from 2014-17 only 2 led to final report decisions being overturned and fully upheld and 7 led to final decisions being partly upheld. That's out of 400 odd reviews and a couple of thousand review requests. Some kind of justice!

M Boyce left an annotation ()

Nicholas Wheatley, thanks for clarifying this in terms of your understanding. It will be interesting to see if the PHSO will also clarify it upon your further request.
I was informed a few days ago by a senior manager at the PHSO that review outcomes are now only either upheld or not upheld. I am currently trying to get verification of this from the PHSO legal team - though what it's got to do with them, as opposed to the Customer Care Team, is anyone's guess. It does all seem rather academic to distinguish between not upheld, partly upheld, or upheld because, as your FOI requests proves, in 99% of cases the ultimate outcome is the same in any case - the PHSO is 'right' and the complainant is 'wrong' and there is no justice. But in fact it is not just academic to enquire as to whether outcomes are not upheld, partly upheld, or upheld because it helps to show that the PHSO investigative processes are becoming increasingly poor and non-transparent. If the PHSO have now jettisoned the partly upheld category then it makes their all or nothing outcomes plainly ridiculous and unsustainable in terms of fairness, and most importantly, the public perception of fairness and the fairness of the PHSO.

Nicholas Wheatley

Dear Parliamentary and Health Service Ombudsman,

It is now 45 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 faithfully,

Nicholas Wheatley

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


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3 Attachments

Dear Mr Wheatley,

 

Internal Review of Freedom of Information request (FDN-275088)

 

I have considered your previous correspondence including your request for
an internal review. Please accept my apologies for the delay in providing
you with this internal review.

 

Internal Review Response

 

Timeliness of response:

 

As per Section 10(3) of the Freedom of Information Act 2000 the time for
our response was extended by an additional 20 working days from 23^rd
March to 24^th April. A response was provided on 24^th April within the
statutory timeframe.

 

You requested:

 

In his letter of 1 February to Bernard Jenkin at PACAC relating to
withdrawing reports, Mr Behrens stated that "Following careful
consideration of the issues by our legal team and senior colleagues, I am
now able to update you on what our approach will be in relation to such
matters going forward". A link to the letter is shown below.

 

[1]https://www.parliament.uk/documents/comm...

 

a) Please provide all advice, notes, documents, emails etc. from
colleagues, the legal team, and Mr Behrens relating to withdrawing or
quashing reports.

 

b) Please also provide the same advice, notes, documents, emails etc. from
colleagues, the legal team, and previous Ombudsmen, relating to
withdrawing or quashing reports, particularly any advice, notes,
documents, emails etc. suggesting reports could not be withdrawn or
quashed.

 

c) Please provide details of how a final report is treated when, after
review and further investigation, it is superseded by a second report in
which the outcome of the investigation is changed from "not upheld" to
"upheld"

 

 

Review:

 

I have reconsidered your request dated 25^th February, our response to you
dated 24^th April and your email of 9^th May.

 

I refer to the Freedom of Information Act 2000 exemptions used in our
response below:

 

Section 36

 

I have noted the factors in favour of disclosure referred to in our
response of 24^th April and your email of 9^th May.

 

However, there is a strong public interest in protecting the safe space
for discussion of live and sensitive issues between staff providing advice
to senior staff as well as between senior staff exchanging views in
deliberative manner. There is a strong public interest in protecting that
space for ideas to be fully developed without fear or favour.

 

There is another strong public interest in maintaining an environment that
encourages the free and frank provision of advice and exchange of views
for a deliberative purpose. There is a strong public interest in reducing
the possibility of a "chilling effect" which would dampen the quality of
the decision making processes of public authorities.

 

Finally there is a strong public interest in allowing a major change to be
developed and implemented without undue influence or scrutiny. While the
sensitivity of this issue will reduce over time, the risk of premature
interference in the implementation of a major change is very real and
contrary to the public interest in good public administration.

 

Overall, the factors favouring disclosure do not outweigh the factors
favouring maintaining the section 36 exemption. I do place particular
weight on the general principles of protecting the "safe space" for staff
to explore ideas and deliver advice and opinion, and maintaining an
environment for staff to provide free and frank advice and exchange views.

 

After consideration, I have concluded that the advice, notes, documents,
emails etc asked for are still exempt in line with section 36. S36(2)(b)
applies to information which "would, or would be likely to, inhibit – (ii)
the free and frank exchange of views for the purposes of deliberation".
Section 36(2)(c) relates to information whose release "would otherwise
prejudice, or would be likely otherwise to prejudice, the effective
conduct of public affairs". I have concluded that both of these
subsections apply to discussions of officers who are not offering legal
advice and that the balance of public interest still weighs in favour of
withholding the information in question. This is because the public
interest lies in protecting the safe space necessary to have full and
frank discussions away from external scrutiny and be able to consider
available options.

 

Section 40

 

The disclosure of some data into the public domain would be against the
legitimate expectations of those concerned, and thus unfair and a breach
of the first data protection principle as set out at Section 86(1) of the
Data Protection Act 2018. 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

 

There is a strong public interest in upholding this principle, which is
intended to ensure confidentiality between professional legal advisers and
their clients (in this case, the Ombudsman and Legal Officers). It is in
the public interest that our decisions are fully-informed, drawing on
legal advice where appropriate, and disclosing such advice is likely to
prevent us from being able to successfully defend our legal interests.
Having considered these factors, I have concluded that the arguments for
withholding legal advice outweighs any public interest there might be in
the release of it.

 

Section 44

 

This is an absolute exemption and as by virtue of section 15(1) of the
Health Service Commissioners Act 1993 PHSO investigations are exempt under
section 44(1)(a) of the Freedom of Information Act 2000.

 

I note that part c of your request was not answered in our original
response and I am able to provide the information below:

 

c) Please provide details of how a final report is treated when, after
review and further investigation, it is superseded by a second report in
which the outcome of the investigation is changed from "not upheld" to
"upheld"

 

We will only quash a report or decision in exceptional circumstances given
the very strong public interest in certainty around decisions by PHSO. The
circumstances are:

 

We have missed significant material evidence which we should have
considered and/or the report or decision is incontrovertibly and
significantly wrong for some other reason and there is no other way to
resolve the matter, and it is in the public interest for the report or
decision to be quashed, for example because the existence and its findings
are having a demonstrable adverse impact. If new and significant material
evidence has come to light which could not have been taken into account by
us we would consider opening a new investigation in the usual way if
requested by a qualifying complainant.

 

Conclusion

 

For the reasons set out above, I continue to rely on the exemptions made
use of in our original response but partly uphold your complaint as part c
of your request was not fully responded to.

 

If you remain unhappy with our response, it is open to you to complain to
the Information Commissioner’s Office ([2]www.ico.org.uk).

 

 

Yours sincerely,

 

 

 

Andrew Martin

Freedom Of Information/Data Protection Manager

Parliamentary and Health Service Ombudsman

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

 

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