What exactly is the ICO's 'remit' to investigate complaints against the PHSO?
Dear Information Commissioner’s Office,
I made a complaint to the ICO that the PHSO had vexed a request incorrectly ( later upheld by the court)
However, during the ICO's investigation of my complaint this statement was made by a PHSO officer to the ICO's caseworker , who was attempting to check the facts.:
'I note your concerns about the accessibility of our internal complaints process and your suggestion that Mrs TO has simply been attempting to clarify who she should complaint to.
However, not only do you appear to be commenting on matters outside the remit of the information Commissioner, in doing so you have too readily accepted Mrs TO's explanation for the requests she has made'
:::
Clearly the subsequent court accepted my explanation - having been allowed to read and check the evidence - but could you please provide file information on the following questions that this instruction from the PHSO to the ICO throws up:
1. What is 'the remit of the Information Commissioner' - to investigate complaints against the PHSO - that the PHSO officer specifies?
2. Is the PHSO a special case ...in that it can determine the scope of the way that the ICO investigates complaints against it? While other public authorities cannot?
3. Does the PHSO - or any other public authority- have the remit to instruct an ICO caseworker NOT to check the facts that FOIA complainants have given them?
(...As the PHSO's refusal to let the ICO check a complainant's evidence successfully stopped this part of the ICO's investigation, which led to the public expense of the subsequent court case.)
And if so, what is this special remit?
4. Is the PHSO at liberty to withold evidence from the ICO - as it sees fit - during an investigation?
(.....As the ICO subsequently had to ask the PHSO to provide withheld evidence - after my request to the ICO that the PHSO should provide it - just before the court case was held, which proved my statement was indeed based on fact.)
5. Since complaints against the ICO are investigated by the PHSO, does this make a difference in the way that the ICO investigates complaints about its FOIA and DPA decisions?
If so, could I please read the differing procedure.
FYI :The court case:
http://www.informationtribunal.gov.uk/DB... name redacted]%20EA.2014.0093%20(19.01.2015)%20.pdf
Yours faithfully,
[Name Removed]
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21st October 2015
Case Reference Number IRQ0599771
Dear Mrs Oakley
Thank you for your correspondence of 4 October 2015 in which you requested
information from the Information Commissioner's Office (ICO).Your request
was handled in line with section 1 of the Freedom of Information Act
(FOIA)
Your request read:
1. What is 'the remit of the Information Commissioner' - to investigate
complaints against the PHSO - that the PHSO officer specifies?
2. Is the PHSO a special case ...in that it can determine the scope of the
way that the ICO investigates complaints against it? While other public
authorities cannot?
3. Does the PHSO - or any other public authority- have the remit to
instruct an ICO caseworker NOT to check the facts that FOIA complainants
have given them?
(...As the PHSO's refusal to let the ICO check a complainant's evidence
successfully stopped this part of the ICO's investigation, which led to
the public expense of the subsequent court case.)
And if so, what is this special remit?
4. Is the PHSO at liberty to withhold evidence from the ICO - as it sees
fit - during an investigation?
(.....As the ICO subsequently had to ask the PHSO to provide withheld
evidence - after my request to the ICO that the PHSO should provide it -
just before the court case was held, which proved my statement was indeed
based on fact.)
5. Since complaints against the ICO are investigated by the PHSO, does
this make a difference in the way that the ICO investigates complaints
about its FOIA and DPA decisions?
If so, could I please read the differing procedure?
Response to request
Please see below our response to your questions which I address in turn.
1. What is 'the remit of the Information Commissioner' - to investigate
complaints against the PHSO - that the PHSO officer specifies?
2. Is the PHSO a special case ...in that it can determine the scope of
the way that the ICO investigates complaints against it? While other
public authorities cannot?
No information is held in relation to the above two questions. The PHSO is
a public authority for the purpose of the Freedom of Information Act
(FOIA) and a data controller for the purpose of the Data Protection Act
(DPA). They are also subject to other legislation we enforce including the
Privacy and Electronic Communications Regulations (PECR) and the
Environmental Information Regulations (EIR). Complaints against the PHSO
are investigated in accordance with our service guide
[1]https://ico.org.uk/media/about-the-ico/p...
The PHSO is not “a special case”. Public authorities and data controllers
do not determine the way that the ICO investigates complaints. However, in
order to investigate cases effectively, case officers do engage with the
investigated party seeking clarification and further information when
required.
For your information we hold a memorandum of understanding with the PHSO
which layout a set of principles to be followed when dealing with
information rights issues. Please see below a link to it
[2]https://ico.org.uk/media/about-the-ico/d...
3. Does the PHSO - or any other public authority- have the remit to
instruct an ICO caseworker NOT to check the facts that FOIA complainants
have given them?
(...As the PHSO's refusal to let the ICO check a complainant's evidence
successfully stopped this part of the ICO's investigation, which led to
the public expense of the subsequent court case.)
And if so, what is this special remit?
No information is held in relation to the above question. The PHSO, like
all other public authorities, do not “have the remit to instruct an ICO
caseworker NOT to check the facts that FOIA complainants have given them
“. As explained above, complaints about the PHSO and all other authorities
are investigated in accordance with our service guide.
4. Is the PHSO at liberty to withhold evidence from the ICO - as it sees
fit - during an investigation?
No information is held in relation to the above question. The ICO has the
power to request evidence to be submitted to it if it is deemed necessary
for an investigation. If we fail to receive requested evidence we can
issue an information notice for it .The decision to issue an information
notice is taken in line with our ‘[3]Data protection regulatory action
policy’ or ‘[4]Freedom of information regulatory action policy’.
5. Since complaints against the ICO are investigated by the PHSO, does
this make a difference in the way that the ICO investigates complaints
about its FOIA and DPA decisions?
If so, could I please read the differing procedure?
No Information is held in relation to the above question. As explained
above, the PHSO is subject to FOIA and DPA as any other public authority
or data controller, and complaints about them and subsequent decisions
taken on these complaints are taken in line with our service guide.
We hope our response is of assistance, however If you are dissatisfied
with the response you have received and wish to request a review of our
decision or make a complaint about how your request has been handled you
should write to the Information Access team at the address below or e-mail
[email address]
Your request for internal review should be submitted to us within 40
working days of receipt by you of this response. Any such request received
after this time will only be considered at the discretion of the
Commissioner.
If having exhausted the review process you are not content that your
request or review has been dealt with correctly, you have a further right
of appeal to this office in our capacity as the statutory complaint
handler under the legislation. To make such an application, please visit
the ‘Concerns’ section of our website to make a Freedom of Information Act
or Environmental Information Regulations complaint online.
A copy of our review procedure is available [5]here
Yours sincerely
Iman Elmehdawy
Lead Information Access Officer
Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.org.uk
References
Visible links
1. https://ico.org.uk/media/about-the-ico/p...
2. https://ico.org.uk/media/about-the-ico/d...
3. https://ico.org.uk/media/about-the-ico/p...
4. https://ico.org.uk/media/about-the-ico/p...
5. https://ico.org.uk/media/about-the-ico/p...
Thank you for contacting the Information Commissioner’s Office. We confirm
that we have received your correspondence.
If you have raised a new information rights concern - we aim to send you
an initial response and case reference number within 30 days.
Please note that if you are concerned about the way an organisation is
handling your personal information, we will not usually look into it
unless you have raised it with the organisation first. For more
information please see our webpage ‘raising a concern with an
organisation’ (go to our homepage and follow the link ‘for the public’).
You can also call the number below.
If you have requested advice - we aim to respond within 14 days.
If you have made a request for information held by the ICO - we will
contact you as soon as possible if we need any further information to
enable us to answer your request. If we don't need any further information
we will respond to you within our published, and statutory, service
levels. For more information please visit our webpage 'access information
about the ICO' (go to our homepage and follow the link for ‘about the
ICO’).
If your correspondence relates to an existing case - we will add it to
your case and consider it on allocation to a case officer.
Copied correspondence - we do not respond to correspondence that has been
copied to us.
For more information about our services, please see our webpage ‘service
standards and what to expect’ (go to our homepage and follow the links for
‘Report a concern’ and ‘Service standards and what to expect'). You can
also call the number below.
If you have a matter you would like to discuss with us, please call our
helpline on 0303 123 1113 (local rate).
Yours sincerely
The Information Commissioner’s Office
Our newsletter
Details of how to sign up for our monthly e-newsletter can be found at
[1]http://www.ico.org.uk/tools_and_resource...
Find us on Twitter at [2]http://www.twitter.com/ICOnews
Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.org.uk
References
Visible links
1. http://www.ico.org.uk/tools_and_resource...
2. http://www.twitter.com/ICOnews
[Name Removed] (Account suspended) left an annotation ()
Vanity vexing:
https://www.whatdotheyknow.com/request/e...
[Name Removed] (Account suspended) left an annotation ()
Within Remit
It is a fundamental principle of administrative law that a public body may only do what it is empowered or required to do by statute, whether expressly or by necessary implication.
For decision makers this means that a public body must make a decision that lies within the requirements of its governing legislation. Equally, if they have a duty to perform in determining some question or other, they must not shirk their duty. Doing otherwise would be to render their decision ultra vires and so void.
Public bodies are also governed by the requirements of other legislation, such as the European Communities Act 1972 and the Human Rights Act 1998, which respectively implement European Law and the European Convention on Human Rights. Further there may be duties imposed generally on public bodies, for example by sections 19B and 71 of the Race Relations Act 1976 or the Sex Discrimination Act 1975. Accordingly, public bodies must make their decisions in a way that complies with all such duties placed upon them by statute.
- See more at: http://www.fieldfisher.com/publications/...
So the ICO's verdict was unsound - before it got to court.. Simply because it letthe PHSO bully it out of its remit to investigate the facts of the complaint.
http://www.informationtribunal.gov.uk/DB...
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[Name Removed] (Account suspended) left an annotation ()
Apologies- this is the case referred to:
http://www.informationtribunal.gov.uk/DB...
The ICO acted fairly and with integrity throughout .
The ICO was misinformed by the PHSO and therefore the ICO's lawyer only learned some the facts of the 'Vanity Vexing' case, very late in the day.
The PHSO had also stated that my complaint was AGAINST the ICO...which could be argued as an infringement of my DPA, since the request concerned the Executive Office of the PHSO and not my complaint directly.
The Ombudsman clearly expected the ICO to defend the indefensible - presumably thinking the case would not progress to court - where ALL the evidence has to be presented.
The misinformation was therefore part of the evidence, which the PHSO attempted to withold from me .....and had to be told by the ICO to allow me to see it.
:::
The PHSO also had three chances to withdraw the wrong information and was invited - by me , via the ICO - to attend court to be questioned on the evidence it had given the ICO.
It declined.
In my opinion, to avoid questioning.
:::
The PHSO then blamed the ICO for losing the case because it had not done so with enough 'vigour'.
Which was extremely unfair, as it was the PHSO which has unfairly vexed the request and refused to give the ICO the paperwork which left the ICO with such a poor case.
The ICO didn't attend court.
The cost of this 'Vanity Vexing ' must be around £10k ...and all because the PHSO thought it could withold the crucial paperwork by telling the ICO it was 'out of its remit' to check the facts. That's clearly wrong.
::::
If the ICO had been allowed to check the facts, it is arguable would never initially upheld the PHSO's opinion.
It was not the ICO's fault that it could not could defend the almost indefensible.
No amount of 'vigour' by the ICO's lawyer could have a won a case based on faulty facts.