Parliamentary Health Service Ombudsman / Special Reports / Access to Official Information / PCA

Mr H, who was the subject of a complaint to DPR, said that during an interview a DPR investigating officer had shown him the letter of complaint against him. Mr H complained to the Ombudsman that DPR had subsequently refused to let him have a copy of the letter and that they had also refused to give him information about their methods of investigation. DPR told Mr H that, under the Code, there was a right of access to information, not to a document; as he had seen the document he would be aware of its contents. People should feel able to complain to DPR without fear that what they say will be passed on to other parties. They cited Exemptions 4(a), 4(b), 4(c) and 12 in Part II of the Code. In addition, they referred to rules of public policy as regards informants and to the binding in confidence of public bodies which have received information on a confidential basis while pursuing their statutory functions. Their view was that those principles prohibited disclosure of the letter; and they considered that it would be inappropriate to reveal, other than in a court of law, information about evidence obtained during an investigation or about their methods of investigation. (However, information about their general procedures is already available to the public.) The Ombudsman said that the question whether or not a department is obliged to release a document containing information previously disclosed is not something the Code addresses; it was not, therefore, a matter on which he could reach a view under the Code. As to the request for information about DPR's methods of investigation, the Ombudsman found that the sort of information which Mr H was seeking was protected by Exemptions 4(b), 4(c) and possibly 4(e) of the first edition of the Code.

1.1 Mr H complained that an investigation by the Data Protection Registrar into a complaint made against him under the Data Protection Act 1984 had been unnecessary, unfair and dilatory. One aspect of his complaint was that DPR had refused to give him a copy of the letter of complaint against him and information about their methods of investigation.

1.2 The Data Protection Registrar is a statutory officer funded by grant-in-aid and answerable for her policy to Parliament and the courts. For convenience I use 'DPR' to describe her office and staff. My investigation began in August 1997 after the Ombudsman had obtained comments from DPR.

Background

1.3 The Data Protection Act 1984 (the Act) gives rights to individuals about whom information is recorded on computer. They may find out information about themselves, challenge it if appropriate and claim compensation in certain circumstances. The Act places obligations on those who record and use personal data. They must be open about that use (through the data protection register) and follow sound and proper practices (the data protection principles). The data user's entry in the register describes the personal data held, the purposes for which it is used and the persons to whom it may be disclosed. Data users commit a criminal offence if they knowingly or recklessly use, obtain, disclose or transfer personal data other than as described in their register entry. Since February 1995 it has also been a criminal offence to procure disclosure of personal data knowing or having reason to believe that the disclosure is in contravention of the Act. A person who believes that there has been a breach of the Act may complain to DPR. If the complaint raises a matter of substance which directly affects the complainant and is made without undue delay, DPR must consider it.

1.4 DPR have an investigations department headed by a senior investigating officer, supported by a number of regional investigating officers. Complaints about breaches of the Act which are considered to merit investigation are passed, after a check of the relevant register entry, to an investigating officer to carry out interviews. The investigating officer will usually first interview the complainant and others who can give information about the matter; if it then appears that there is a matter which should be put to the subject of the complaint, the investigating officer will interview the appropriate person or persons.

1.5 There is no power of arrest in relation to offences under the Act. However, in conducting interviews, DPR follow the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers (the police Code) issued by the Home Secretary under the Police and Criminal Evidence Act 1984. The officer should inform the interviewee that he is under no compulsion to be interviewed and has the right to legal advice. The officer should outline the circumstances which have given rise to the interview and caution the interviewee. The interview should be recorded on an interview record. At the end of the interview, the interviewee should be offered a chance to make any further statement he considers relevant, and to read the interview record and sign it as correct or indicate the respects in which he considers it inaccurate.

1.6 After all necessary interviews have been completed, the investigating officer compiles a report for DPR. DPR employ a team of in-house solicitors supported by a number of external solicitors working in private practice. If the investigating officer considers that the investigation has disclosed an offence which could be dealt with by way of prosecution, the report is sent to an external solicitor for assessment of the evidence. If there is sufficient evidence for a prosecution, the solicitor makes a recommendation; DPR's Legal Advisor then decides whether DPR should prosecute, taking into account whether a prosecution would be in the public interest. DPR notify the person concerned of the decision by letter. If DPR prosecute, the court will issue a summons, following which, in accordance with the defendant's right to advance disclosure of evidence, DPR will provide him on request with copies of all relevant statements and documents.

1.7 DPR are among those bodies to which the Code of Practice on Access to Government Information (the Information Code) applies. Paragraph 3.1 of DPR's in-house guide to the implementation of the Information Code reads:

'The Code of Practice requires the Registrar to respond to specific requests for information relating to his policies, actions and decisions and other matters within his area of responsibility. The Registrar already routinely provides a great deal of information in response to requests from the public. It is not intended that the requirements of the Code should disturb existing flows of information and it would not be practical to treat every request for information as a request under the Code. Requests for information are usually satisfied by the provision of information published by the Registrar, the provision of copy documents or by the supply of other information which is readily accessible and can be provided easily and expeditiously. Staff should continue to deal with these requests as previously.'

Paragraph 5.5 of the document reads:

'The Deputy Registrar will aim to give a substantive response to a complaint within 35 working days. If detailed investigations are needed which take longer than this, the enquirer will be kept informed of progress at regular intervals.'

Investigation

1.8 On 10 October 1995, during the interview with Mr H, the DPR investigating officer showed the letter of complaint to Mr H and his representative. Both Mr H and his representative read the letter. On 13 October, during a telephone conversation with the DPR solicitor, Mr H asked for a copy of the letter of complaint. He was told that that was not normal practice. On 29 December he repeated his request during a further telephone conversation with the solicitor.

1.9 On 26 January 1996 the solicitor wrote to Mr H saying that DPR were treating the matter as an information request under the Information Code, and she enclosed a document which explained how DPR handled such requests. She went on to say that she could not provide a copy of the letter of complaint because the Registrar took the view that it was not appropriate to release details of an investigation, except in cases where investigations led to formal proceedings in a court or a tribunal; in support she quoted Exemptions 4(a) and (b) in Part II of the Information Code. She told Mr H that he had the right to ask the Deputy Registrar to review the refusal of his request and if, after that review, he remained dissatisfied he could refer the matter to the Ombudsman.

1.10 Mr H wrote to the solicitor on 17 February saying that he had first asked for a copy of the letter of complaint in October 1995, and that he was dissatisfied with DPR's reasons for withholding it, particularly as he had been given the letter to read during his interview. If, as it appeared from the letter of 26 January, the Registrar's view was that the information should be withheld from him, he did not see that the Deputy Registrar would come to a different conclusion; in which case, he ought to be able to complain direct to the Ombudsman. The solicitor replied on 23 February. She apologised for not treating his initial request as an Information Code request. Under the Information Code, he was entitled to have access only to information, not to a document; and, as he had been shown the letter, he was necessarily aware of its contents. DPR had also indicated the Code exemption under which they thought the information should be withheld. The solicitor went on to say that it was not in the public interest for a letter of complaint to DPR to be passed on to the subject of one of their investigations; complainants should be able to write to the Registrar without fear that what they said would be passed on to other parties. The Registrar had not been involved in the consideration of his request; the reference to the Registrar in her earlier letter was to the Registrar's general view. In conclusion, she said it was open to Mr H to ask the Deputy Registrar to conduct an independent review, and the Ombudsman would expect him to have asked for such a review before referring the matter to him; the views of the Registrar, quoted in the letter of 26 January, were of general application only.

1.11 Mr H wrote again to the solicitor on 1 March. He said that, according to the Information Code, one way of meeting information requests was by 'the provision of copy documents'; that statement had led him to understand that he could be given a copy of the letter of complaint. He asked what information DPR gave to prospective complainants and, if that information was set out in a booklet, whether he might have a copy. He also wanted to know what DPR had said about their investigation of him to the individuals who had made the complaint. In her reply of 14 March the solicitor told Mr H that if he wished the Deputy Registrar to review his information request, he could refer the matter to him once a decision had been made about whether or not to prosecute him, although she could not promise that the outcome of that internal review would result in a different decision. She enclosed a copy of a booklet entitled 'Your Complaint' which DPR give to complainants; she said that it was her understanding that the complainant in question would have been told that the matter complained of was under investigation and that she (the complainant) would be informed of the outcome in due course.

1.12 On 26 April Mr H wrote to the DPR solicitor asking the Deputy Registrar to review the matter of the letter of complaint. On 3 May the DPR solicitor wrote to Mr H confirming that that would be done. The Deputy Registrar wrote to Mr H on or about 1 July (although his letter was wrongly dated 11 July). He said he had not completed the formal note of his consideration of the information request but he had come to the conclusion that it would not be proper to release the letter of complaint to Mr H. He said he would send Mr H a full note on the reasons for his decision the following week. (He also told Mr H how to refer a complaint to the Ombudsman.)

1.13 On 6 July Mr H wrote to the Deputy Registrar asking how much their investigation of the complaint against him had cost and what the Deputy Registrar perceived to be the public benefit arising from it. The Deputy Registrar replied on 12 July enclosing a statement of the reasons why DPR could not release a copy of the complaint letter. He cited in that statement Exemptions 4(a), (b) and (c) and Exemption 12 in Part II of the Information Code and referred to the 'harm test' in the preamble to Part II. He referred also to rules of public policy in respect of informants and to the binding in confidence of public bodies when they had received information on a confidential basis while pursuing their statutory functions: those principles, he believed, also prohibited disclosure. He believed that the contents of the complainant's letter, to the extent that they were not known to Mr H, were of a confidential nature. In conclusion, he said that if there was no duty of confidence then, in his view, Exemptions 4(a) and 4(c) provided a basis for withholding the information. The Deputy Registrar thought it inappropriate to answer any other questions about the investigation.

1.14 On 13 July Mr H wrote again to the Deputy Registrar. He said that as he had been shown the whole of the letter during his interview, the Deputy Registrar's comment that those parts of the letter which he had not seen were confidential was unsustainable. On 26 July the Deputy Registrar wrote back to say that he had been unsure of the extent to which Mr H had been aware of the contents of the letter; in his view, that justified his earlier comment. There was a further exchange of correspondence on 27 July and 5 August. Mr H told the Deputy Registrar on 27 July that the record of his interview stated that both he and his representative had been shown and read the letter of complaint; why, if that letter was confidential, had their investigating officer shown it to his representative, and why had the Deputy Registrar differentiated between information which they thought he had seen and that which he might not? The Deputy Registrar replied on 5 August saying that he had no further comments to make on the question of whether or not Mr H should be given a copy of the letter of complaint: he had given the reasons for his decision, and it was improper to comment on detailed questions about the way DPR conducted a criminal investigation. Further correspondence ensued in which the Deputy Registrar repeated his view that it would be inappropriate to reveal, other than in a court of law, information about evidence obtained in the course of an investigation, or about DPR's methods of investigation.

DPR's reply to the complaint

1.15 Regarding DPR's refusal to give Mr H a copy of the letter of complaint, the Registrar said that the reasons for refusing Mr H's request had been set out in a statement attached to the Deputy Registrar's letter of 12 July 1996 to Mr H (paragraph 1.13). In addition, there was evidence that Mr H intended to use the letter of complaint in legal proceedings against the complainant: on that basis the Registrar considered the public policy of protecting informants to be relevant. The questions which Mr H put to DPR after he had made his initial information request concerned the validity of their decision whether or not to prosecute him, the investigative techniques used in their investigation and their overall approach to his case - that is, they were specific to his investigation and not about DPR's approach to investigations in general. (Information about their general procedures was already available to the public.) The Registrar went on to say that Mr H had not asked for the information under the Information Code. His letter took the form of a series of general enquiries; it did not fit naturally into the form of a request for specific information under the Code. His enquiries had been dealt with, therefore, in the same way as routine correspondence about DPR's procedures. Had his enquiries been treated as an information request under the Information Code, DPR would have relied upon Exemption 4(e) in order to withhold the information.

1.16 The exemptions in Part II of the Information Code which DPR cited are set out below. Those exemptions are quoted from the first edition of the Information Code. The parts of Exemption 4 (headed Law enforcement and legal proceedings) which DPR cited read as follows:

'(a) Information whose disclosure would prejudice the administration of justice, including fair trial and the enforcement or proper administration of the law.
(b) Information whose disclosure would prejudice legal proceedings or the proceedings of any tribunal, public inquiry or other formal investigation (whether actual or likely) or whose disclosure is, has been or is likely to be addressed in the context of such proceedings.
(c) Information relating to proceedings which have been completed or terminated, or relating to investigations which have or might have resulted in proceedings.
(e) Information whose disclosure would prejudice the prevention, investigation or detection of crime, the apprehension or prosecution of offenders, or the security of any building or penal institution.'

Exemption 12 (headed Privacy of an individual) reads:

'Unwarranted disclosure to a third party of personal information about any person (including a deceased person) or any other disclosure which would constitute or could facilitate an unwarranted invasion of privacy.'

The 'harm test' in the preamble to Part II of the Information Code reads:

'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.'

Findings

1.17 The letter of complaint against Mr H which was sent to DPR raised a matter which the Registrar was obliged under the Act to consider.

1.18 It is a matter of fact that the DPR investigating officer showed Mr H the letter of complaint during the course of the interview on 10 October 1995. Mr H has stated that he read the letter in full. He may therefore be said to have received all the information that the letter contains. The Information Code applies to information which has not been released. It follows that a department cannot argue (as DPR have done in this case) that information which has been released (intentionally or not) can be withheld subsequently under one or more of the exemptions set out in Part II. It follows equally that no value will be gained through my consideration of the exemptions DPR have applied to this information, as they are simply inapplicable to information which has already been made available. The Information Code provides for the release of information as opposed to documents. The question of whether or not a department is obliged to provide a document containing the information previously disclosed is not something which the Information Code addresses. It is not therefore a matter for me under the Information Code to determine whether or not DPR should send a copy of the letter to Mr H. In the circumstances of the case I do not find maladministrative DPR's decision not to give Mr H a copy of the letter of complaint against him.

1.19 I turn next to the other requests for information made by Mr H. A number of those were made in the course of a lengthy correspondence. Mr H did not refer to the Information Code in making those requests but that does not mean that DPR were entitled to ignore the Code when considering them: all requests for information should be treated as Code requests. I criticise DPR for that. I recognise that in practical terms, in respect of routine enquiries where the information will be made available, there is no need to highlight the Information Code. If, however, as in this case, the information is to be withheld then it is imperative that the Information Code is considered. In fact DPR provided answers to a number of the questions put by Mr H. Other requests, for example that referring to the cost of investigations, could not be answered because DPR did not have the information. The Information Code does not require departments to provide information which they do not possess: but DPR chose not to refer to that. Their approach was simply to deny the information on the broad basis that they were questions related to a criminal investigation and that it would therefore be improper to answer them. That is not acceptable, as there are Code exemptions which are designed to cover precisely that type of request, and which DPR could have cited. Turning to the other questions raised by Mr H which remained unanswered, I am satisfied that, with the exception of questions which were essentially designed to elicit an opinion (for example, the question about the supposed public benefit of investigating Mr H) the information sought by Mr H in relation to the conduct of the investigation is effectively protected by Exemptions 4(b), (c) and possibly (e) (the part of Exemption 4 that DPR quoted) of the original Information Code. I do not therefore consider that there is any information which DPR ought to release under the Information Code to Mr H.

1.20 I now turn to other aspects of the way in which DPR handled Mr H's requests for information. I am pleased to see that DPR have a system for dealing with Information Code requests. I think it unfortunate, however, that parts of Mr H's request for information were not dealt with under it. It was unfortunate too that a misunderstanding arose when Mr H was invited to apply for a review of the initial decision to refuse him access to the information in the letter of complaint. He was clearly of the view that his initial request had been turned down with the authority of the Registrar herself and understandably felt, on that basis, that an appeal to the Deputy Registrar was unlikely to be fruitful. While I recognise that in subsequent correspondence DPR explained to Mr H that the views of the Registrar as quoted were meant to be general rather than specific, I have no doubt that it coloured his view of the likely success of any appeal he might make. I invited the Registrar to ensure that the wording of future letters relating to Code appeals make it clear at what level requests have been considered and that each case will be dealt with on its individual merits. In reply, she said that her office has already changed their practice to ensure that their correspondence makes it clear by whom any decision would be made.

1.21 I am satisfied that, given the continuing correspondence there was with Mr H, DPR did not unduly delay dealing with the requests that he made. I am however concerned that the 35 working days which DPR allow for an internal review of an information request (paragraph 1.7) is too long. I invited DPR to consider substituting a timescale closer to the 20 days suggested in Part I of the Information Code for responses to initial requests. The Registrar said she would be looking at their practice in this respect, in comparison with other organisations, as part of a major structural review. She would give this proposal very serious consideration.

Total screening and investigation time (for the wider investigation) = 100 weeks

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Last updated: 4 April 2005

Parliamentary Commissioner for Administration

ACCESS TO OFFICIAL INFORMATION

5TH - SESSION 1998-99