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Parliamentary and Health Service Ombudsman

Investigations Completed July 2004 - March 2005, Part One

Charity Commission

A.46/04

Refusal to provide information relating to the production and distribution of a CD

Summary

Mr D asked the Charity Commission for information they had received from a charity relating to the production and distribution of a CD. The Charity Commission refused to provide the information sought by Mr D, citing Exemptions 4(a) and 14 of the Code. Following the Ombudsman’s intervention the Charity Commission agreed to release the information in full to Mr D. The Ombudsman welcomed the Charity Commission’s decision. She was however critical of several aspects of the way in which they had handled Mr D’s information request.

1. Mr D complained that the Charity Commission (the Commission) had refused to supply him with information that should have been made available to him under the Code of Practice on Access to Government Information (the Code). I have not put into this report every detail investigated, but I am satisfied that no matter of significance has been overlooked.

Background to the complaint

2. On 28 September 2001 Mr D wrote to the Commission to complain about the actions of a charity, of which he was a member (the Charity). His complaint concerned the Charity’s production and distribution of a CD whose title track was based on a poem written by Mr D. On 9 January 2002 Mr D wrote to the Charity and requested copies of the full minutes of meetings at which the production and distribution of the CD were discussed (the minutes). On 15 January 2002 the Commission wrote to the Charity and requested copies of the minutes and any other correspondence where the production and distribution of the CD had been discussed. On 22 January 2002 the Charity wrote to Mr D and said that he was free to view the minutes by appointment, although they could not sanction the removal or copying of the full minutes. However, they said that they had extracted from the minutes all of the entries concerning the CD and enclosed them with their letter. They said that the enclosures included a list of all the persons referred to in them. On 23 January 2002 the Charity telephoned the Commission to discuss the case, during which the Commission made a brief manuscript note of the conversation. On 28 January 2002 the Commission wrote to the Charity to again request copies of the minutes. On 4 February 2002 the Charity wrote to the Commission enclosing copies of the minutes.

3. On 26 February 2002 Mr D telephoned the Commission and requested a copy of the Charity’s explanation of the circumstances surrounding the production of the CD. On 11 March 2002 Mr D telephoned the Commission again and reiterated his request for details of the Charity’s explanation of the situation, in particular the minutes of meetings. On 14 March 2002 the Commission wrote to Mr D and said that the purpose of correspondence with any party (particularly the trustees of a charity) was to satisfy themselves on issues that had arisen in relation to the protection of charity funds and assets. They said that they were not entitled to disclose information submitted to them in that context without the consent of those who had submitted it. They said that the Charity were not under any legal obligation, ordinarily, to disclose minutes of their meetings and it would not therefore be their intention to request that they be allowed to disclose minutes to a third party if the trustees had already decided not to do so.

4. On 20 March 2002 Mr D telephoned the Commission to express his dissatisfaction with the way in which they had handled his complaint, including their refusal to provide the information that he had requested. He referred to the Freedom of Information Act 2000 and said that, if the Commission maintained their refusal to provide him with the information he had requested, he wanted them to send him forms so that he could make a complaint against that decision. He also asked for advice on what other procedures he could take in order to obtain the minutes. On 26 March 2002 the Commission wrote to Mr D to say that they had referred the case to their legal division for consideration. In a memorandum to the Commission’s legal division dated 2 April 2002 the case officer referred to the Commission’s guidance on open government, in particular that relating to Exemptions 4(a) and 14 of the Code. She noted that, with regard to the minutes, they might not contain any more information than that to which Mr D had already been offered access. With regard to the correspondence they had on file with the Charity, she noted that it did not appear to be particularly confidential and that, in fact, some of it had already been sent by the trustees to Mr D. The Commission’s legal division provided their advice on 16 April 2002. They noted that Mr D had indicated that he required copies of the Charity’s minutes in order to determine authorship and that it was not unreasonable, therefore, to accept the possibility that Mr D could commence proceedings for ownership of the copyright. As such, they believed that Exemption 4(a) was relevant because ‘disclosure is likely to be addressed in the context of such proceedings’. They believed that this exemption could be cited in addition to Exemption 14 of the Code.

5. On 24 April 2002 the Commission provided Mr D with extracts from their policy on open government and said that, in their opinion, the information he had requested fell under the two exemptions that they had highlighted. The Commission also enclosed a copy of their complaints procedure. On 1 May 2002 Mr D telephoned the Commission to express his dissatisfaction with the way in which they had handled his case. On the same day the Commission sent Mr D details of how to make a complaint about their decision, or the way in which it had been handled, and advised Mr D to address any such complaint to their Customer Service Manager.

6. On 9 May 2002 Mr D telephoned the Customer Service Manager and said that he wished to make a formal complaint about the way the Commission had handled his case. On 21 May 2002 the Customer Service Manager met Mr D to discuss his complaint. On 14 June 2002 the Customer Service Manager wrote to Mr D with a report of his findings. While he found that the Commission could have handled his case better in parts he did not uphold Mr D’s complaint. In the background to the complaint the Customer Service Manager noted that there was an ‘indication, albeit a brief one on Commission files, that the [Charity’s Company Secretary] rang the Commission on 23 January 2002’. With regard to his request for information, the Customer Service Manager believed that the Commission’s letter of 24 April 2002 should have contained the offer of a review by the Departmental Records Officer. The Customer Service Manager said that Mr D could write to the Head of the Commission’s Regional Operations within one month if he remained dissatisfied. Mr D wrote to the Head of Regional Operations on 24 June 2002, who replied on 16 July 2002. He agreed with the Customer Service Manager’s conclusions and said that, if Mr D remained dissatisfied, he could approach the Independent Complaints Reviewer.

7. On 24 June 2002 Mr D also wrote to the Commission to make a formal complaint against the Charity’s Company Secretary, whom he believed had made unfounded allegations about his conduct. The Commission replied on 3 July 2002, saying that the issues he was pursuing were essentially the same as those that the Commission had previously considered but directed more specifically at a named individual rather than the trustees collectively. They said that, if he believed that the Company Secretary’s comments were defamatory, he should pursue this matter through his own legal advisers. On 20 July 2002 Mr D wrote to the Commission and, in response to their suggestion that he take legal advice, said that he could not respond to the allegations until they had been set out clearly. Accordingly, he asked for a transcript of the telephone call made to the Commission by the Charity’s Company Secretary on 23 January 2002 (paragraph 6). He also asked for copies of any letters relating to this matter that had been sent to the Commission by the Company Secretary, or by other trustees on his behalf.

8. The Commission responded to Mr D on 5 August 2002. They said that they noted that he was requesting copies of the correspondence between the Charity and Radio Merseyside but that, as they were not party to any such correspondence, he should take up his request with the parties involved. As for the remainder of his complaint they said that, as previously advised, he should approach the Independent Complaints Reviewer. On 24 August 2002 Mr D wrote again to the Commission and repeated his request for a copy of the ‘brief recording’ of the telephone conversation between the Charity’s Company Secretary and the Commission on 23 January 2002. He also asked for copies of correspondence between the Charity and the Commission. He said that he needed these items before he could take legal advice on this matter, as he had been advised to do by the Commission. He asked the Commission to send him their ‘rules of disclosure’ if they maintained their decision not to allow him access to this information. On 10 September 2002 the Commission responded to Mr D. They said that the brief record of the telephone conversation that he referred to was a written note and that it would, therefore, fall into the same category as the ‘correspondence between the Charity and the Commission’. They said that, while their letter of 24 April 2002 had set out their position with regard to disclosing such correspondence, they noted that the Customer Service Manager’s report had identified that they could have offered a review by their Departmental Records Officer. They said that his request had, therefore, been referred to that Officer.

9. An internal Commission memorandum dated 23 September 2002 outlined Mr D’s request for information and the previous decision that had been relayed to him on 24 April 2002. The memorandum concluded that the case officer’s refusal to disclose the requested correspondence, following legal advice on the interpretation of both the complainant’s request and their open government guidance, was properly given and that the information requested fell within categories that were exempt from the duty to disclose (Exemptions 4(a) and 14). On 1 October 2002 the Commission’s Departmental Records Officer wrote to Mr D to say that he had reviewed the decision to refuse him access to the information he had requested but that, after due consideration, he considered that the original decision had been correct. He said that the information provided by the trustees had been supplied in confidence and was, therefore, exempt from disclosure. He advised Mr D of his right to complain to the Ombudsman, via a Member of Parliament, if he was not satisfied with the response or the way in which his request had been handled.

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The Commission’s comments on the complaint

10. In providing his comments on the complaint, the Commission’s Customer Service Manager said that he had examined their files and obtained the comments of the Departmental Records Officer. He said that Mr D had first contacted the Commission in September 2001 to express his about the administration of the Charity and its treatment of him personally. He was dissatisfied with the Commission’s response and entered the Commission’s formal complaints procedure. His complaint was considered by the Commission’s Customer Service Manager who concluded that, while the complaint should not be upheld, Mr D should have been offered a review by their Departmental Records Officer, having earlier been denied access to Commission records. He said that Mr D subsequently took his complaint to the second stage of the Commission’s procedure: consideration by the Regional Head of Operations, who wrote to Mr D on 16 July 2002, concurring with the view taken by the Customer Service Manager. He said that Mr D had also been signposted to the third, and final, stage of the Commission’s complaints procedure, investigation by the Independent Complaints Reviewer, but said that there was no indication that Mr D had taken this course of action. (Note: Mr D has told me that he did write to the Independent Complaints Reviewer but that, when he approached her subsequently, her Office denied having received any correspondence from him.) Finally, the Customer Service Manager said that the Commission’s Departmental Records Officer had written to Mr D on 1 October 2002 and informed him of the appropriate remedy should he be dissatisfied with that response.

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Exemptions of the Code

11. In the preamble to part II of the Code, under the heading ‘Reasons for confidentiality’, it states: ‘The following categories of information are exempt from the commitments to provide information in this Code. In those categories which refer to harm or prejudice, the presumption remains that information should be disclosed unless the harm likely to arise from disclosure would outweigh the public interest in making the information available. References to harm or prejudice include both actual harm or prejudice and risk or reasonable expectation of harm or prejudice. In such cases it should be considered whether any harm or prejudice arising from disclosure is outweighed by the public interest in making information available.’

12. Exemption 4 is headed ‘Law enforcement and legal proceedings’ and part (a) reads as follows: ‘(a) Information whose disclosure could prejudice the administration of justice (including fair trial), legal proceedings of any tribunal, public inquiry or other formal investigations (whether actual or likely) or whose disclosure is, has been, or is likely to be addressed in the context of such proceedings.’

13. Exemption 14 of the Code is headed ‘Information given in confidence’ and reads as follows: ‘(a) Information held in consequence of having been supplied in confidence by a person who: • gave the information under a statutory guarantee that its confidentiality would be protected; or • was not under any legal obligation, whether actual or implied, to supply it, and has not consented to its disclosure. (b) Information whose disclosure without the consent of the supplier would prejudice the future supply of such information. (c) Medical information provided in confidence if disclosure to the subject would harm their physical or mental health, or should only be made by a medical practitioner.’

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Investigation

14. Mr D’s request for information was for copies of: (i) the minutes; and (ii) correspondence between the Charity and the Commission, including a copy of a brief note of a telephone conversation that took place on 23 January 2002. Having looked very carefully through the Commission’s files the only minutes held on them were those provided by the Charity on 4 February 2002 (paragraph 2). It seemed to me that there was a strong likelihood that these minutes were the same as those already disclosed to Mr D by the Charity on 22 January 2002 (paragraph 2). I therefore asked the Commission to clarify with the Charity whether or not this was the case. In reply, the Commission said that they had contacted the Charity and could confirm that all of the minutes they held on their files were the same as those disclosed to Mr D on 22 January 2002. As such, the Charity had no objection to the Commission disclosing those minutes to Mr D, and the Commission agreed to do so.

15. I also noted that, although Mr D had requested copies of the correspondence between the Commission and the Charity, there was no indication on their files that the Commission had asked the Charity whether or not they had any objections to that information being disclosed to Mr D. I therefore asked the Commission, when contacting the Charity, to also ask them if they would consent to that information being disclosed to him. In reply, the Commission enclosed a letter from the Charity in which they said that they had no objections to their correspondence being forwarded to Mr D. The Commission latterly agreed to also disclose those letters that they had written to the Charity, as well as a copy of the note of the telephone conversation that took place on 23 January 2002.

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Assessment

16. My role is to investigate the way the Commission handled Mr D’s request for information and to decide whether or not they were justified in refusing to disclose that information under the terms of the Code. I shall not comment on the way the Commission handled Mr D’s complaint against the Charity and I refer to such matters in this report only to set in context the way the Commission handled his information request. I should also say, given the reference that has been made by both Mr D and the Commission to the Freedom of Information Act 2000, that until that Act comes fully into force on 1 January 2005 all requests for Government-held information should be considered under the terms of the Code.

17. As far as the information sought is concerned the Commission have now agreed to provide Mr D with all of the information that he requested from them. I very much welcome that decision and, in the light of that development, I see no merit in considering whether or not Exemptions 4(a) and 14 could have been successfully applied to the information requested had the Commission continued to withhold it. I therefore make no finding on this matter.

18. In the light of the difficulties faced by Mr D in obtaining the information he was seeking, however, I believe I should consider the way in which the Charity handled his request for information. The Code requires departments to provide information as soon as practicable and sets the target for responding to simple requests for information at 20 working days from the date of receipt. While this target may be extended when significant search or collation of material is required, an explanation should be given in all cases where information cannot be provided. It is also good practice in such cases for departments to identify in their responses the specific exemptions in part II of the Code on which they are relying in making that refusal. Moreover, they should make the requester aware of the possibility of a review under the Code, which in all cases should be a single stage process. The aim of the review is to ensure that the applicant has been fairly treated under the provisions of the Code and that any exemptions have been properly applied. It is good practice for such reviews to be conducted by someone not involved in the initial decision. Finally, the department should make the requester aware of the possibility of making a complaint to the Ombudsman if, after the completion of the review process, they remain dissatisfied.

20. However, despite this guidance, the Commission’s handling of Mr D’s request for information was particularly poor. In responding to his first and second requests for information they failed to either consider its disclosure under the terms of the Code or advise him of his right to seek a review (paragraph 3). Mr D then expressed his dissatisfaction and sought advice on how to complain about their decision (paragraph 4). In response, the case officer sought legal advice, provided a copy of the relevant guidance on the Code and maintained the refusal to provide the information under two of the exemptions in part II. However, the Commission again failed to advise Mr D of his right to either seek a review of the decision or of his right to complain to the Ombudsman (paragraph 5). Instead, when Mr D again expressed his dissatisfaction with the decision, he was advised to complain to the Customer Service Manager. While that might have been the appropriate course of action for his substantive complaint about the way the Commission had handled his complaint against the Charity, it was not the correct avenue of complaint against the Commission’s refusal to provide him with information. 20. Moreover, even when the Customer Service Manager said in his report that Mr D should have been offered a review of the decision to refuse him information (paragraph 6), nothing was done about it, even after the Head of the Regional Office subsequently reviewed the case. Indeed, no action was taken to review the information aspect of his complaint until Mr D made a further request for information. The Commission initially misinterpreted this request as being a request for correspondence between the Charity and Radio Merseyside (paragraph 8). It was only when Mr D reiterated his request and again sought advice about the Commission’s ‘rules on disclosure’ that they referred his request to the Departmental Records Officer. That Officer finally reviewed the matter, cited the relevant exemptions of the Code and advised Mr D of his right to complain to the Ombudsman if he remained dissatisfied (paragraph 9).

21. I recognise that Mr D’s request for information was interwoven with his substantive complaint about the actions of the Charity. However, the requests for information themselves were not complicated and I can fully understand Mr D’s sense of frustration at the lengths to which he had to go before he received a proper and full response to his requests. As I have said, the Commission have now agreed to disclose the minutes and the correspondence to Mr D. While I welcome that decision, it is also frustrating to note that the Commission came close to releasing this information over two years ago. In her analysis of the case on 2 April 2002 (paragraph 4) the case officer noted that it appeared that Mr D might already have seen all of the minutes that they had on file and that there was nothing in the correspondence between the Charity and the Commission that was particularly confidential. I must emphasise that the approach to the release of information under the Code is essentially positive and based on the presumption that information should be disclosed unless the harm likely to arise from disclosure would outweigh the public interest in making the information available. If the Commission had adopted this approach when considering Mr D’s request in 2002 it seems likely to me that it would have resulted in at least a partial disclosure of the information he was seeking.

22. The Commission could and should have considered Mr D’s requests for information more positively, and certainly more quickly, than they did. I am critical of the failures in the way the Commission handled Mr D’s complaint and, in the light of my comments, I recommended to the Commission that they take steps to ensure a commitment to dealing with all future requests for information with reference to the requirements of the Code and, from 1 January 2005, with reference to the statutory requirements of the Freedom of Information Act 2000.

23. In reply, the Chair of the Commission said that they had now provided Mr D with the information he had requested. She agreed that Mr D had not received a standard of service that he could reasonably have expected and she accepted that his requests for information could have been dealt with far quicker and with a greater degree of openness than they had been. The Chair said that the Commission took its commitments to dealing with requests for information very seriously, both with reference to the Code and to the statutory requirements of the Freedom of Information Act 2000. She said that she had asked the Commission’s Head of Customer Service to consider how best they should take this forward in respect of staff training and awareness.

Conclusion

24. While I am pleased that the Commission have now decided to release the information sought by Mr D I have been critical of several aspects of the way in which they handled his request for information. The Commission are taking steps to remind their staff of the procedures for handling requests for information and I see that, and the release of the information requested, as a satisfactory outcome to a justified complaint.

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Last updated: 10 June 2005