Home > Publications > Selected cases — Parliamentary > Selected Cases and Summaries of Completed Investigations - April to October 1998 > A.23/97
Second Report Session 1998-99
Volume 2 - ACCESS TO OFFICIAL INFORMATION LORD CHANCELLOR'S DEPARTMENT (HM LAND REGISTRY)
Refusal to release a land registration file on a property to the persons occupying the adjoining property
Mr and Mrs E were in dispute with HM Land Registry (LR) over the possible rectification of the registration of a plot of land. They asked LR for a copy of the registration file for a property adjoining their own. LR said the information requested was not strictly relevant to the application for rectification, and that the Land Registration Act 1925 gave them discretion whether or not to allow access to their files. LR told the Ombudsman that access to the records raised issues about the confidentiality of private information. They had considered the Code in relation to the information request and had provided Mr and Mrs E with all the relevant information on the file in question (and other relevant information). The Chief Land Registrar took the view that as the request was for a file that request was governed by the 1925 Act, which gives him personal discretion, and that the Code did not apply. He also referred to paragraph 8 of Part I of the Code, which says the Code cannot override statutory rights of access or statutory prohibitions on disclosure, and which are not within the remit of the Ombudsman. The Ombudsman accepted that LR's decision not to grant access to the file was a discretionary one under the 1925 Act. However, he said that paragraph 8 of Part I of the Code concerns situations where there is either a right of access or a prohibition on disclosure—and not the exercise of discretion. In situations where statutes allow for the exercise of discretion about disclosure, he expected bodies within his jurisdiction to take full account of the requirements of the Code (and of his interpretation of it in case of dispute). The Chie Land Registrar did not accept that assessment. The Ombudsman found that, whether or not the Code applied, LR had fulfilled their obligations under the Code by disclosing the relevant information held on the file. For that reason, he did not uphold the complaint.
5.1. Mr and Mrs E complained that they had been refused information held by HM Land Registry (LR) in breach of the Code of Practice on Access to Government Information (the Code).
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Background
5.2. On 26 December 1996 Mr and Mrs E, who were in dispute with LR in respect of the possible rectification of the registration of a plot of land, wrote to them requesting a copy of the registration file for a property adjoining their own. On 17 January 1997, LR sent a substantive reply in which they considered other matters raised by Mr and Mrs E concerning the title to the adjoining property, but failed to respond to their request for access to the file. Mr and Mrs E referred again to the question of the file in a further letter dated 22 January. LR replied on 29 January, but again failed to reply to the request for access to information.
5.3. On 30 January, Mr and Mrs E wrote again to say that although they had asked for the file it had not been forthcoming. LR did deal with the information request in their reply dated 3 February, but said that they were unwilling to provide further information or copy documentation which, like the file requested, they thought to be 'not strictly relevant' to the application for rectification. In response, Mr and Mrs E wrote to the Chief Executive of LR on 4 February noting this refusal. LR replied on 7 February, quoting the Land Registration Act 1925 and explaining that section 112(2)(b) of that Act gave them discretion whether or not to allow access to their files. On that basis LR again refused disclosure.
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Land Registry's reasons for refusing access
5.4. In a letter dated 7 October 1997 to the Ombudsman's deputy, the Chief Land Registrar said that, while the register of title to land in England and Wales was held by LR—a government agency—the contents of the register and the background relate, in essence, to the private ownership of land. Access to the records raised issues about the confidentiality of private information; and inspection of the register and other documents held by LR relating to the registrations was regulated by section 112 of the Land Registration Act 1925. LR had set out the full text of that section in a letter of 7 February 1997 to Mr and Mrs E:
'(1) Any person may, subject to such conditions as may be prescribed and on payment of any fee payable, inspect and make copies of and extracts from -
- entries on the register, and
- documents referred to in the register which are in the custody of the registrar (other than leases or charges or copies of leases and charges).
'(2) Documents in the custody of the registrar relating to any land or charge but not falling within subsection (1)(b) of this section may be inspected, and copies of and extracts from them may be made -
- as of right, in such cases as may be prescribed, and
- at the discretion of the registrar, in any other case, but subject in all cases to such conditions as may be prescribed and on payment of any fee payable.
'(3) References in this section to documents include references to things kept otherwise than in documentary form.'
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5.5. In a later letter dated 5 December 1997, the Chief Land Registrar explained the background to Mr and Mrs E's request. He said that Mr and Mrs E were the registered owners of a property under a particular title. For some time they had been pursuing a claim to the ownership of a strip of land included in the registration of an adjoining property. Their claim to this land had been exhaustively investigated by LR, who were completely satisfied it was without foundation; and the reasons for this had been thoroughly explained to Mr and Mrs E in correspondence with them. Nevertheless, in order to continue to pursue their claim, Mr and Mrs E made a request for a complete copy of LR's file relating to the title to the adjoining property. In the course of correspondence with Mr and Mrs E, the Chief Land Registrar claimed that LR had already provided all the relevant information from the file as well as copies of relevant documents.
5.6. The Chief Land Registrar said that LR had considered the Code in relation to Mr and Mrs E's request. However, since the request was for a complete copy of the file relating to a registration, section 112 of the Land Registration Act applied (as it would to a request for part of a file), and the request was governed by its provisions. He said that the matter of the relationship with statute was covered in paragraph 8 of Part 1 of the Code; and he added that if Mr and Mrs E were dissatisfied with LR's decision, their remedy would be to seek judicial review. Paragraph 8 of Part I of the Code (Relationship to statutory access rights) says:
'This Code is non-statutory and cannot override provisions contained in statutory rights of access to information or records (nor can it override statutory prohibitions on disclosure). Where the information could be sought under an existing statutory right, the terms of the right of access take precedence over the Code... It is not envisaged that the Ombudsman will become involved in supervising these statutory rights...'
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5.7. The Chief Land Registrar said that for these reasons he did not believe that this was a matter to which the Code applied. He went on to say that, even if the Code were held to apply, the action LR had taken in supplying detailed explanations and copies of relevant documents from the file relating to the title to the adjoining property complied with the commitment to provide information as set out in paragraph 4 of Part 1 of the Code. The Cabinet Office's Guidance on Interpretation of the Code (the Guidance) made it clear that the public had no right of access to a particular document.
Assessment
5.8. There are two matters I need to consider in relation to this complaint: does the Code apply; and, if it does, have Mr and Mrs E been given all the information to which they have an entitlement under it? To deal with the first issue, LR have stated that their decision not to grant Mr and Mrs E access to the file they had requested was a discretionary one made under the provisions of section 112 of the Land Registration Act 1925. I accept that. LR then go on to say that the Code therefore could not apply, because the request was governed by statutory provisions. In support of that argument they have quoted paragraph 8 of Part I of the Code (see paragraph 5.6 above). I find this aspect of their argument less persuasive.
5.9. Paragraph 8 of the Code is concerned with the Code's relationship to statutory rights of access to information and statutory prohibitions on disclosure; that is, situations where statute admits of no choice or ambiguity. The Code makes no reference, either in the main document or in the accompanying guidance, to cases where statute allows a choice to be made by the exercise of discretion. If a body covered by the Code were exercising its discretion whether or not to release information in circumstances where there was no statutory provision I would expect that body to exercise such a discretion with regard to the requirements of the Code. It seems to me to be both a reasonable and logical extension to treat a statutory discretion in a similar manner, and that a failure to do so could be regarded, prima facie, as evidence of maladministration.
5.10. I put this to the Chief Land Registrar, who said that he was unable to agree. He said that the Code is a non-statutory code laid down by ministers and is effectively a series of ministerial directions to civil servants about the release of official information. In contrast, Parliament had vested in him as a statutory office holder the discretion contained in section 112; and as a consequence no minister had the power either to exercise the discretion or to direct the Registrar as to how it should be exercised. He added that if he were to regard himself as bound to give effect to the Code in exercising the statutory discretion any decision taken on that basis would be liable to be quashed by the courts on the ground that he had misdirected himself and wrongly fettered himself in exercising it.
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5.11. This issue has not arisen in any other case considered by this Office; and both the Code and the Guidance are silent on the matter. I do not think that the issue is as simple as the Chief Land Registrar suggests. In particular, I am strongly of the view that bodies within my jurisdiction should take full account of the Code (and my interpretation of it, in case of dispute) in exercising their discretion. In doing so, they would not be unlawfully fettering their discretion, but taking account of the public policy of giving wider access to official information. However, it is not necessary to resolve the issue in this case because LR have said that although they did not believe the Code applied they had nevertheless concluded that, even if it had, all the relevant information from the file requested had been passed to Mr and Mrs E at various times during the course of the correspondence. LR therefore took the view that on that basis they had complied with the commitment to provide information as set out in paragraph 4 of Part 1 of the Code, given that the Code provides a right only to information and not to documents. It is therefore LR's view that, while not basing their decision upon the Code, they have in fact made a decision which accords with the Code's requirements.
5.12. For the purposes of my investigation my staff have examined the file and compared its contents with the information provided by LR to Mr and Mrs E (and made available to this Office) over the period of a protracted correspondence. On that basis I am satisfied that, whether or not the Code applies, there is no information contained in the file relevant to the issues raised by Mr and Mrs E which has not been made available to them either by means of a specific document or through the letters LR, both centrally and locally, wrote to them (the Code gives no entitlement to the documents).
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Conclusion
5.13. I am satisfied that the information contained in the documents requested by Mr and Mrs E has been disclosed to them even though LR argue that the Code did not apply to that information. It is therefore not necessary for me to express an opinion on that argument. On that basis I do not uphold the complaint.
Total screening and investigation time = 35 weeks
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