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Home > Publications > Selected cases — Access to Official Information > Investigations Completed January-June 2001 Volume Five > Case no. A.20/01
3rd REPORT—SESSION 2001-2002
Department of Trade and Industry
Case No. A.20/01
Refusal to release details of marks awarded to an unsuccessful application for a grant award and documents relating to a disputed telephone conversation.
Mr Q, who runs a number of small companies, entered a competition for a grant award (the Smart scheme) run by the Department of Trade and Industry (DTI). After being told that his entry had been unsuccessful, he requested copies of all the appraisals, reports and marks his application had received. He also asked to be told the lowest score that a competitor had received while still qualifying for an award. DTI refused to provide that information, citing Exemption 2, but offered Mr Q the opportunity to have his application reviewed by a Director. Subsequently the Director and Mr Q had a telephone conversation in which Mr Q said an offer of an award was made: the Director denied making any such offer. The Director completed his review of Mr Q's application and his report concluded that it did not merit an award. Mr Q requested sight of the Director's report and DTI refused to provide this information, citing Exemption 7(a). Mr Q then requested that DTI provide him with a witness statement and copies of any contemporaneous accounts from the colleague of the Director who had been present during the disputed telephone call, because he intended to pursue legal action against both the Director and DTI. DTI again refused to provide this information, citing Exemption 4(a). The Ombudsman found that the exemptions which DTI had cited were relevant. However, he also found that Mr Q had not been given at the earliest opportunity all the reasons why his application had failed to secure an award. DTI accepted the Ombudsman's criticism of this practice and agreed to ensure that, in future, unsuccessful applicants would be told all the reasons why they failed to secure an award as early in the process as possible. The Ombudsman considered this a satisfactory outcome to a largely unjustified complaint.
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1.1 Mr Q complained that the Department of Trade and Industry (DTI) had refused him access to information to which he was entitled under the Code of Practice on Access to Government Information (the Code). My investigation began in October 2000 after I had received comments from the then Permanent Secretary at DTI, following the Member's referral of the complaint to the Parliamentary Ombudsman. I have not put into this report every detail investigated by the Ombudsman's staff but I am satisfied that no matter of significance has been overlooked.
General Background 1.2 The Government Offices for the Regions (GOs) were established in April 1994. They combine the former regional offices of what were the Departments of the Environment, Transport, Education and Employment, and also DTI. That part of Surrey within Greater London is covered by the Government Office for London (GOL).
1.3 The Smart scheme, which was introduced by DTI in April 1997, currently operates to help small and medium sized enterprises and individuals to research, design and develop technologically innovative products and processes for the national benefit. Smart provides funding of 75% of project costs, up to a maximum of £45,000 to assist in technical and commercial feasibility studies and 30% to help the development of technological products. Companies can apply for Smart at either stage of a project, and the maximum grant available for one applicant is 200,000 euro.
1.4 At the time Mr Q made his application, the Smart scheme was run as a national competition. Individuals and independent small businesses with fewer than 50 employees could submit proposals for support for feasibility studies into innovative technology (Feasibility Stage Awards); independent businesses with fewer than 250 employees could compete for support for development projects up to the pre-production prototype stage of new products and/or processes involving a significant technological advance (Development Stage Awards). Competitions were run by each GO. More than one competition could be held each year.
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1.5 All potential applicants were required to register their interest in the Smart scheme by completing a Registration of Interest (RoI) form. Each RoI would be assessed by the GO covering the geographical area in which the bulk of the work on the project in question was expected to take place. Applicants who were successful at that stage were invited to apply for a grant award by completing a full application form (AF) and returning it within a given deadline to the appropriate GO. AFs were assessed against a marking framework to determine a short list of award winners. Specialist advice, obtained from one or more sources, was used to assist the assessment team when judging the overall suitability of the entries. A panel of judges would then consider all the projects on the short list to determine which of them had best satisfied the competition criteria. Those criteria included: the level of innovation and novelty; viability; market potential; additionality (whether the applicant needs support to accelerate or enhance the project, or to carry it out at all); and the capability of the company or individual to complete the project and achieve commercial exploitation of the results.
1.6 Since 4 August 2000 the Smart scheme is no longer run on a competitive basis. Applications can now be submitted at any time and those that are fully documented should normally receive a decision within 60 days. The availability of awards is subject to the availability of funds in the scheme at the time the application is made.
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Background 1.7 Mr Q runs a number of small companies. On 26 March 1999 Mr Q registered an interest in the Smart scheme by completing a RoI form in the name of one of his companies for a feasibility study award. GOL considered the RoI but thought Mr Q's application to be more suited to a development project and, on 12 April, wrote to invite him to submit a full application for a development project award. On 15 April Mr Q wrote to GOL to explain why his application should be treated as one for a feasibility study award. On 20 April GOL wrote expressing willingness to treat his application as a feasibility study.
1.8 On 7 May 1999 Mr Q submitted a full application for a feasibility study award. GOL assessed the application, taking expert advice from several sources, and visiting Mr Q to seek clarification of a number of points before preparing a case paper for submission to the judging panel. On 14 July GOL's judging panel met to consider all the applications submitted for that competition and recommended that Mr Q's project should not be supported. On 27 July GOL wrote to Mr Q to tell him that his project had been unsuccessful, giving the three main reasons for the decision. (The judging panel had in fact found six reasons for rejecting Mr Q's application)
1.9 On 30 July 1999 Mr Q wrote to GOL disputing the reasons why his application had been unsuccessful. He also requested a copy of the patent report (which had previously been offered to him) and suggested he might provide further information in support of his application. On 3 August GOL wrote to Mr Q enclosing a copy of the patent report but declining his offer of further information as inappropriate for a competition. On 5 August Mr Q wrote to GOL requesting a copy of the Smart rules, which GOL sent to Mr Q on 9 August.
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1.10 On 11 August 1999 Mr Q wrote to GOL requesting copies of the forms received in relation to his application marked; Smart Project Appraisal, Appraisal Marking Frame, Model Appraisal Reports, Final Appraisal Report and the Final Total Score. He also asked to be told the lowest score that a competitor had achieved while still qualifying for a Smart feasibility study award, and any information relating to the procedure for lodging appeals: Mr Q said that he was content for the names of individuals to be removed from the documents he had requested. On 7 September Mr Q wrote to GOL to say that he had not received the documents requested in his previous letter. He said that he had prepared a draft seeking a reconsideration of his application but that he needed the requested documents in order to finalise his submission. On 9 September GOL replied, declining to provide copies or details of the documents Mr Q had requested, because they believed such information fell within Exemption 2 of the Code. GOL went on to explain that if Mr Q was dissatisfied with their decision he could ask for a review. GOL also told Mr Q that there was no right of appeal against the refusal to grant a Smart award but that they were happy to meet Mr Q to explain again why his application had been unsuccessful.
1.11 On 10 September 1999 Mr Q wrote to GOL to invite them to reconsider his application. On 24 September GOL wrote to Mr Q saying that the Director of DTI's SME Technology Directorate (SMET) (the Director) had agreed to review his application on an independent basis, both in terms of the appraisal and the subsequent judging. The letter went on to explain that, as the Smart scheme was competitive, any such review must be fair to the other applicants; therefore the Director would review only the evidence available to the judging panel and not any new information supplied by Mr Q after the panel's decision. GOL said that the Director would aim to complete his review within four weeks. On 4 October Mr Q wrote to GOL, welcoming the decision to review his application and pointing out certain areas to which he wished to draw the Director's attention.
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1.12 Following a telephone conversation on 26 October 1999 (the contents of which remain in dispute), the Director wrote to Mr Q on 5 November saying that he had completed his review and had concluded that GOL had been right not to approve a Smart award: the Director added that he would be writing again shortly to set out in more detail the reasons for his decision. On 6 November Mr Q wrote to the Director to say that, during their telephone conversation of 26 October, he believed that an offer of a Smart award had been made to him and he could not now understand why that offer had been withdrawn: Mr Q said that he thought that he and the Director had agreed that an offer would be made in writing and that Mr Q would need to consider if the conditions attached to the offer were acceptable to him. On 8 November Mr Q wrote again, trying to clear up the misunderstanding he believed had occurred, and offering to meet the Director so that any remaining issues could be resolved and an offer of a Smart award made.
1.13 On 9 November 1999 the Director wrote to Mr Q disputing his version of events surrounding their telephone conversation. The Director said that he had never told Mr Q that an offer would be made to him: he also declined Mr Q's offer of a meeting. There then followed an exchange of correspondence during which Mr Q sought to dispute the Director's account of their telephone conversation, as well as seeking a fuller explanation of the review decision.
1.14 On 13 December 1999 Mr Q wrote to the Regional Director at GOL to complain about the conduct of his review and to ask for information about GOL's internal complaints procedure. On 15 December Mr Q wrote again to the Director. He repeated points made in earlier letters but also asked that GOL review their decision not to release the information he had requested in his letter of 11 August. Mr Q said that if the information were not made available to him he might need to seek its disclosure through the courts. He sent an e-mail to another member of DTI's staff on 17 December with a similar request. On 20 December GOL replied to Mr Q to confirm that there was no formal right of appeal against a refusal to make a Smart award, and to say that it was hoped to provide Mr Q with the full reasons for their decision shortly. On 23 December the Director wrote a further letter to Mr Q confirming that GOL had set in motion the procedure for an internal review of their decision not to release the information he had requested. He promised to send a full response to other matters raised in that letter in due course.
1.15 On 17 January 2000, following further correspondence, DTI wrote to Mr Q to update him on the progress of the internal review he had requested of GOL's decision not to release the information he had requested. On 19 January Mr Q wrote to the Secretary of State for Trade and Industry complaining that DTI's latest letter had not addressed all the issues raised in his previous letters, including a request for information relating to a potential court action made in a letter of 29 December; the following day he sent the Director-General Enterprise and Regions DTI (the Director-General) a further e-mail in which he requested copies of all the information relating to the review of his Smart application. On 26 January the Director-General replied substantively to Mr Q about all the matters he had raised. On the issue of whether or not it was appropriate to provide Mr Q with a copy of the Director's report (the document which set out in detail why Mr Q had not received a Smart award), as had previously been promised, DTI said that when this offer had first been made it was envisaged that the report would be along the lines of a note containing the kind of information usually given to unsuccessful applicants. However, in view of Mr Q's declared intention to mount a legal challenge to GOL's decision, it was necessary for the Director to prepare a much more detailed account than usual. As a result DTI felt that, if disclosed, the contents of the report would give Mr Q's company an unfair advantage over fellow competitors should Mr Q choose to make a further application for a Smart award. DTI therefore declined to make the contents of the report available to Mr Q, quoting Exemption 7(a) of the Code. However, they did provide Mr Q with a summary of all the reasons given by GOL's judging panel for rejecting his application as well as those additional reasons identified by the Director in the course of his review.
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1.16 On 28 January 2000 Mr Q replied to this letter, disputing the contents and requesting additional information. On 8 February the Director-General wrote to Mr Q with the results of DTI's internal review into GOL's refusal to release information to him (see paragraphs 1.10 and 1.14). DTI found that GOL had acted correctly in refusing to make the information in question available to Mr Q. DTI said that in large part the information requested constituted internal discussion and advice whose disclosure would harm the "frankness and candour of internal discussion" and, as such, fell within the terms of Exemption 2(a) of the Code. DTI also thought that in administering the Smart scheme it was essential to ensure parity of treatment to all applicants therefore disclosure of the requested information would also " prejudice.the awarding of discretionary grants" within the terms of the third element of Exemption 7(a) of the Code. The Director-General said that the review had considered the balance of harm that might be caused by disclosure as against the public interest in knowing it, in respect of the information sought within the terms of Exemption 2 of Part II to the Code, but had concluded that the harm likely to arise from disclosing the information would outweigh the public interest in making it available.
1.17 On the same day the Director-General also wrote to Mr Q about the points he had raised in his letter of 28 January and provided him with the information he had requested. More generally, the Director-General said that DTI did not accept Mr Q's criticisms of their investigations into his various complaints, nor did they believe that any useful purpose would be served either by meeting Mr Q or by prolonging their correspondence. On 9 February Mr Q wrote two more letters to DTI, continuing to dispute the findings of their investigations into his complaints and indicating that court action might result in the disclosure of the information he was seeking.
1.18 Following further correspondence Mr Q wrote to the Permanent Secretary of DTI on 6 March 2000 requesting that DTI provide him with a witness statement and copies of any contemporaneous accounts from the colleague of the Director who had been present during the disputed telephone conversation of 26 October 1999. Mr Q said that DTI were obliged to provide him with this information as part of the pre-action behaviour in respect of the legal action he was pursuing. On 13 March the then Permanent Secretary wrote to Mr Q saying that DTI had already given him their account of the telephone conversation and that they were under no obligation to disclose any such particulars in advance of legal action.
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The then Permanent Secretary's Comments 1.19 In his response to the statement of complaint the then Permanent Secretary said that, in his view, the detailed information requested by Mr Q about how his application for a Smart award had been assessed had been rightly withheld because the information contained internal opinion, advice and recommendations, the disclosure of which would prejudice the frankness and candour of internal discussion. The then Permanent Secretary added that disclosure of this information would also be likely to prejudice the operation of the Smart scheme itself because, in administering the scheme, it was necessary to ensure parity of treatment to all applicants. Disclosure of the information, therefore, could have placed Mr Q at an advantage over fellow competitors should he have chosen to re-apply. The information requested was, therefore, withheld under both Exemption 2 and Exemption 7(a) of the Code.
1.20 In respect of DTI's refusal to make available to Mr Q the report completed by the Director, the then Permanent Secretary said that Mr Q had already been given a summary of the reasoning behind the Director's decision (paragraph 1.15). However, because the report was essentially a review of how GOL arrived at their decision, much of the information in it constituted internal discussion whose disclosure, as with the other information requested, would also harm the "frankness and candour of internal discussion" within the terms of Exemption 2 of the Code. The then Permanent Secretary also said that the disclosure of the report or the information in it would "prejudice . the awarding of discretionary grants" within the terms of Exemption 7. The then Permanent Secretary added that, between 10 November 1999 and 31 March 2000, Mr Q had frequently threatened to take legal action against DTI over the treatment of his application. As the Director's report was likely to feature prominently in any proceedings brought by Mr Q, DTI were of the opinion that the information contained within the report constituted "Information.whose disclosure.is likely to be addressed in the context of such proceedings (i.e. legal proceedings...or other formal investigations). As a result, the information could also be withheld under Exemption 4(a) of the Code.
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1.21 The then Permanent Secretary had also considered Mr Q's request that DTI provide him with a witness statement from the colleague of the Director who had been present during the disputed telephone conversation. The then Permanent Secretary said that DTI's position remained as set out in his letter of 13 March 2000 to Mr Q (paragraph 1.18). He added that the information requested would again constitute "Information.whose disclosure.is likely to be addressed in the context of such proceedings (i.e. legal proceedings.or other formal investigations). As a result the information could be withheld under Exemption 4(a) of the Code.
1.22 The then Permanent Secretary went on to say that, from 4 August 2000, the Smart scheme had ceased to be a competition so that, by definition, release of the information relating to the assessment of Mr Q's application and the report completed by the Director would no longer give Mr Q an unfair advantage over other applicants. However, DTI still had a duty to ensure equality of treatment to all applicants, even though they were no longer in competition: additionally, the logistics of releasing information to the extent requested by Mr Q to all applicants would render the scheme inoperable, a view they believed had previously been expressed by the Ombudsman in a similar case. As such DTI therefore believed that, despite the changes to the manner in which the scheme was operating, their reliance on Exemption 7(a) was still valid.
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The Code of Practice 1.23 Exemption 2 of the Code, which DTI have cited, is headed "Internal discussion and advice" and reads as follows:
'information whose disclosure would harm the frankness and candour of internal discussion, including:
- proceedings of Cabinet and Cabinet committees;
- internal opinion, advice, recommendation, consultation and deliberation;
- projections and assumptions relating to internal policy analysis; analysis of alternative policy options and information relating to rejected policy options;
- confidential communications between departments, public bodies and regulatory bodies.'
1.24 Exemption 7(a) of the Code, which DTI have cited, is headed " Effective management and operations of the public service" and reads as follows:
'Information whose disclosure could lead to improper gain or advantage or would prejudice:
- the competitive position of a department or other public body or authority;
- negotiations or the effective conduct of personnel management, or commercial or contractual activities;
- the awarding of discretionary grants'.
1.25 Exemption 4(a) of the Code, which DTI have cited, is headed "Law enforcement and legal proceedings" and reads as follows:
'Information whose disclosure would prejudice the administration of justice (including fair trial), legal proceedings or the proceedings of any tribunal, public inquiry or formal investigations (whether actual or likely) or whose disclosure is, has been, or is likely to be addressed in the context of such proceedings'.
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Assessment
1.26 Mr Q initially asked to see all the information used to judge his application for a Smart award. In particular, he asked to see; the Smart Project Appraisal; the Appraisal Marking Frame and the Final Appraisal Report. He also asked to be told not only the total score his own application had received but also the lowest total score awarded to a successful Smart applicant. The information sought by Mr Q comes from a number of different sources; from GOL's own staff; from external experts whose advice GOL sought, and from the judging panel who reached the final decision on Mr Q's application. Subsequently, Mr Q also asked to see a copy of the report of the review carried out by the Director and documents relating to it, and a copy of the witness statement made by the colleague of the Director who had been in the latter's room during the disputed telephone call. It is perhaps appropriate at this stage to issue the reminder that the Code gives a right of access (subject to exemption) to information only, not to documents.
1.27 Dealing with each of these sources of information in turn, the Smart Appraisal Marking Frame was completed by GOL following their appraisal of Mr Q's application form. There are two Smart Project Appraisal Forms on Mr Q's file, each of which was completed by an expert adviser at GOL's request. The Final Appraisal Report, also known as the case paper, was completed by GOL and draws together all the factual information and advice relating to Mr Q's application for submission to the judging panel. The judging panel then reached a view on Mr Q's application and allocated it a total. How should all this information be dealt with in relation to the exemptions that have been applied to it?
1.28 I consider first of all Exemption 2. In his reply to the statement of complaint (paragraph 1.22) the then Permanent Secretary drew attention to an earlier, very similar, case considered by this Office (A11/99, Selected Cases, November 1998 to March 1999, HC 438). In that case DTI also cited Exemption 2. I have no doubt that, as in that case, Exemption 2 is, in principle, applicable to the kind of information the Department is seeking to protect. The Smart process involves the submission of an application to the consideration of those experts, both internal and external, who are most able to make an accurate assessment of its suitability for an award. That advice, to be of value, needs to be both frank and unambiguous: there would be little virtue in seeking it otherwise. (I note, however, that the forms provided to those giving this advice do recognise the possibility that their comments may, in certain circumstances, be revealed.) Equally, the final comments of the judging panel, need to be clear and straightforward in order to justify the decision reached. This, it seems to me, is particularly the case when such judgements are being made in a climate that, at the time Mr Q's application was under scrutiny, was still a competitive one. Exemption 2, however, also incorporates a harm test: therefore the issue of whether or not disclosure might harm the 'frankness and candour of internal discussion' as defined by the Code must be considered. I recognise that, for many applicants, much may hinge upon the success or otherwise of a Smart application. It is therefore entirely right that unsuccessful applicants should be given as much information as possible as to why their application did not secure an award. In this case GOL wrote to Mr Q on 27 July 1999 giving a number of reasons for his failure to secure an award. They did not, however, at that stage give him all the reasons. Following Mr Q's appeal for a review the Director General, in his letter of 26 January 2000, provided a more detailed summary of the reasons for the rejection of the application. I think there is therefore little doubt that Mr Q now knows the reasons why his application was turned down (although I recognise that he may not agree with them). I do, however, believe that Mr Q could have been told all the reasons for the failure of his application in July and I criticise the Department for not doing this until the time of the review. At the time his application was assessed, those advising and commenting on it did so in the expectation that what they wrote would be treated in confidence and it appears to me that the successful operation of such a scheme as Smart (even in its new, non-competitive, format) could be seriously impeded if those providing candid advice knew that it might subsequently be passed on verbatim to the applicant. A balance needs to be struck between providing unsuccessful candidates with enough information to explain why they did not obtain an award (and possibly helping them to achieve one in the future) and ensuring that those invited to comment on applications may do so in the confidence that they can speak frankly: this, in my view, remains the case even though, as DTI have admitted, providing Mr Q with this information would no longer disadvantage other applicants as the scheme is no longer competitive. I find therefore that, in this case, this balance has been achieved and that Exemption 2 therefore applies.
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1.29 In addition to Exemption 2, DTI have also sought to withhold this information under the part of Exemption 7 that applies to discretionary grant schemes. At the time Mr Q made his application, the Smart scheme was run on a competitive basis: that is no longer the case. Does the fact that the scheme is no longer competitive mean that the view taken by the Ombudsman in the case cited earlier (see previous paragraph), that releasing the information sought would impede the efficiency of the scheme, now needs amendment? I think not. It is of course the case that the scheme is not now competitive in the way it was before and it would be therefore much less true to say that releasing the information to Mr Q would give him an advantage over his fellow competitors. The fact, however, remains that DTI still need to decide, in relation to any proposal put to them, that it fully meets the criteria of the scheme. That process, as I understand it, will continue to require the provision of expert advice which needs to be unconstrained in a way that I suspect it would not be if it were known that that advice might be available in undiluted form to the applicant. On that basis I think that Exemption 7 can also be held to apply. I do however believe that the transition from a fully competitive scheme to one in which applicants are competing only against the criteria, and not each other, should allow DTI, without affecting the candour of the advisory and decision-making process, to consider widening yet further the amount of information they routinely make available to unsuccessful applicants. I invited the Permanent Secretary to consider what more might be done in that context. In reply, he said that Smart appraisal officers had now been instructed to inform unsuccessful applicants of all the reasons for their failure to secure an award (paragraph 1.28). The Permanent Secretary said that he was uncertain how far the transition from a competitive to a non-competitive scheme allowed his department to widen the amount of information routinely made available to unsuccessful applicants. He added, however, that appraisal officers were now at liberty to discuss proposals with potential applicants before full applications were submitted and possible difficulties can therefore be identified at an earlier stage. The Permanent Secretary also confirmed that the guidance issued to appraisal officers would be strengthened to make it clear that the reasons given to unsuccessful applicants for the shortcomings of their applications should be as full, specific and clear as possible.
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1.30 I turn now to the question of the report written by the Director, which DTI have sought to withhold under Exemptions 2, 4(a) and 7. The report, the gist of which has been provided to Mr Q, consists of both a very thorough review of the Smart award process as well as a detailed examination of the strengths and weaknesses of Mr Q's application. Inevitably, therefore, much of the information contained in it is the same as that already sought by Mr Q in his earlier request and refused by DTI under Exemptions 2 and 7. It is my view that these exemptions apply equally, and for the same reasons, to the information contained in the Director's report. DTI have also cited Exemption 4(a) as being relevant to this information. This exemption (see paragraph 1.25) effectively covers information whose disclosure would prejudice the administration of justice or of any legal proceedings. Mr Q made frequent reference to his intention of taking legal action against DTI and, more specifically, the Director in respect of his failure to secure a Smart award. Mr Q had made quite clear in his correspondence that his legal action would focus primarily on the review carried out by the Director and on the matter of the disputed telephone conversation. In my view DTI had every reason to believe that Mr Q would take some form of legal action and that the Director's report would feature prominently in it when he did. On that basis I consider that Exemption 4(a) was correctly cited.
1.31 This leaves the question of the witness statement requested by Mr Q. The Permanent Secretary, in his letter of 13 March, said that DTI did not have a legal obligation to disclose such particulars before an action was brought against them. That is not a matter for me. As far as the Code is concerned, however, Mr Q, when requesting this information, asked for it under the terms of the Pre-Action Behaviour under Practice Direction Protocol 4, which he claimed that DTI had failed to comply with. That seems to leave no room for doubt that Mr Q was already using the law to obtain information which he intended to use in pursuit of his proposed legal action. For that reason I am content that this information can also be withheld from Mr Q under Exemption 4(a) of the Code.
1.32 Finally, I turn to DTI's handling of Mr Q's information requests. The Ombudsman has said that it is good practice, when departments refuse requests for information, for them to identify the specific exemptions in Part II of the Code on which they are relying to support that refusal. Also where information has been refused, the possibility of a review under the Code needs to be made known to the person requesting the information at the time of that refusal, as does the possibility of making a complaint to the Ombudsman if, after the review process has been completed, the requester remains dissatisfied. From my examination of the papers it appears that DTI handled all Mr Q's requests in the manner set out by the Code and made sure that he was aware of the options available to him. I commend DTI for that.
Conclusion 1.33 I have accepted that DTI were entitled under the Code to withhold the information requested by Mr Q. I have noted the Permanent Secretary's assurance that in future unsuccessful applicants will be told at the earliest opportunity all the reasons why their applications failed to secure an award. I regard this as a satisfactory outcome to a largely unjustified complaint.
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