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Home > Publications > Selected cases — Parliamentary > Selected Cases and Summaries of Completed Investigations - April to October 1998 > A.25/97
Second Report Session 1998-99
Volume 2 - ACCESS TO OFFICIAL INFORMATION
ENVIRONMENT, TRANSPORT AND THE REGIONS (VEHICLE INSPECTORATE)
Refusal to disclose information obtained from a manufacturer about defects found in one of their vehicles
Under the terms of the Vehicle Safety Code, the Vehicle Inspectorate (VI), an executive agency of the former Department of Transport (DOT), obtain information from manufacturers on safety related matters. Mr D, who had notified VI of a defect in his car, was dissatisfied with the explanation which VI had obtained from the manufacturer as to the likely cause, and asked to see the correspondence between VI and the manufacturer on the matter. VI refused to disclose the information on the grounds of departmental policy. Asked to review that decision, VI added that much of the information provided by manufacturers was 'commercial in confidence' (Exemption 13 in Part II of the Information Code), and that it might not be provided if manufacturers thought it was to be made more widely available (Exemption 14(b) in Part II of the Information Code). A further request by Mr D for VI to reconsider their decision was referred to DOT who said that, under the Information Code, VI did not have to disclose information obtained from a party under no obligation to supply it (Exemption 14(a)). Commenting on the complaint, the Chief Executive of VI said that the success of VI's operation depended on an undertaking given in the Vehicle Safety Code that information obtained from manufacturers would not be disclosed. The Ombudsman found that, in the course of correspondence, VI had already disclosed to Mr D much of the information they had obtained from the manufacturer, without having obtained their prior consent. He concluded, therefore, that Exemption 14(a) did not apply. Turning to Exemption 13, the Ombudsman saw no evidence that disclosure of the limited amount of remaining information would harm the supplier's competitive position. In the absence of evidence that the manufacturer objected to the disclosure of information already provided to Mr D, or the small amount remaining, the Ombudsman found that Exemption 14(b) did not apply either. VI remained concerned that they should not disclose the remaining information without the manufacturer's consent. Recommending disclosure, therefore, the Ombudsman invited VI to contact the manufacturer to obtain their agreement. Having done so, the remaining information was disclosed by VI to Mr D. The Ombudsman upheld the complaint.
3.1. Mr D complained that VI (an executive agency of the Department of the Environment, Transport and the Regions (DETR), previously of the Department of Transport (DOT)) had refused to provide him with information to which he was entitled under the Code of Practice on Access to Government Information (the Information Code).
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Background
3.2. One of VI's functions is to investigate allegations of safety related design or manufacturing defects in all types of vehicles and associated components, a function which they carry out under the terms of various codes of practice agreed with the motor industry. One of these is the Code of Practice on Vehicle Safety Defects (the Vehicle Safety Code), last revised in January 1992, and under which VI can request a manufacturer to recall vehicles or components if there is evidence of defects arising from a design or manufacturing fault, where there are implications for safety, and where a significant number of vehicles are affected. Section 6 of the Vehicle Safety Code requires manufacturers to provide VI with relevant information they hold which might help to establish the existence of safety defects. Section 8 covers the disclosure by VI of such information. It reads:
'[VI] reserves the right, under Ministerial authority, to publish at any time any information of which it is notified, where this seems necessary in the public interest. Before doing this, [VI] will consult the vehicle manufacturer, and where appropriate, the component manufacturer concerned, and will not disclose publicly information on matters of commercial confidence unless there appear to be overriding safety considerations. Subject to this proviso, [VI] will also make public at regular intervals summary information on action taken on cases notified under [the Vehicle Safety Code]. It will normally divert to a manufacturer more specific requests on particular cases.' Back to top
3.3. Mr D had been in correspondence with VI since January 1996 when he notified them of a fire which had broken out in the engine compartment of his car. VI subsequently made enquiries of the vehicle's manufacturer about the possible causes of the fire and, based on the manufacturer's response, reported their findings to Mr D on 30 April 1996. They said that the manufacturer was unaware of any similar defects across their range of vehicles and that they 'have attributed the failure to ageing of the pipe as opposed to a manufacturing defect'. VI told Mr D that in view of that, and in the absence of similar reports for any other vehicles, they would be taking no further action under the Vehicle Safety Code.
3.4. Mr D wrote to VI on 10 May to say he could not accept the manufacturer's explanation because the automatic transmission fuel (ATF) pipes in his car were new and had been fitted only a few days before the incident. Following further correspondence between VI and himself, on 18 July he wrote to VI to ask for a copy of the correspondence in which the manufacturer had answered VI's specific questions about the likely causes of the fire. VI replied on 31 July, refusing this request on the grounds of departmental policy. On 10 September 1996, Mr D wrote to VI to complain about their refusal to provide him with a copy of what he described as the manufacturer's 'report' about the defective ATF pipe. He said he could see no 'compelling' reason why he should be denied access to the report and asked to see it. In their reply of 16 September, VI said that in the course of investigations they asked vehicle manufacturers for detailed information, much of which was considered to be 'commercial in confidence'. They said that they had no power to compel manufacturers to provide them with such information, and that they might not continue to supply it if they thought it would be made more widely available. They went on to say that, while copies of correspondence could not be released, vehicle owners were invariably informed of the conclusions drawn from it by both the manufacturer and VI.
3.5. Mr D wrote again to VI on 12 October, asking them if they had put questions of their own to the manufacturer and, if so, what they had been. VI's reply on 21 October provided the details of their questions together with the manufacturer's answers to each, but VI did not provide copies of the letters. Mr D wrote back on 24 October suggesting that, as VI had now given him the information, and as it was not commercially sensitive, there was no reason why he should not see the manufacturer's report. In reply, VI said that they did not have a report as such from the manufacturer, only correspondence, 'most of the content of which' had already been made known to him. Mr D wrote back to VI on 14 November and, this time citing the Information Code, asked for copies of all the correspondence between VI and the manufacturer: he asked to be informed if any information was being exempted under the Information Code. VI passed this request to DOT Headquarters, who replied on 29 November. While confirming that VI were bound by the Information Code DOT said that information did not have to be disclosed under that Code if it was supplied by a party who was under no legal obligation to supply it or who had not consented to its disclosure. Additionally, there was no requirement under the Information Code to disclose if the disclosure without the consent of the supplier might prejudice the future supply of such information. DOT went on to say that releasing the correspondence would add nothing to the information with which Mr D had already been provided.
3.6. On 27 January 1997, Mr D wrote to DOT asking for a copy of the manufacturer's report or, if none existed, the name of their official from whom 'verbal information' had been obtained. DOT said in reply that they had nothing to add to their previous replies and suggested that Mr D wrote direct to the manufacturer. On 16 June Mr D wrote to the Deputy Chief Executive of VI, making the same request that he had earlier made direct to DOT. VI replied on 27 June, to confirm that the information the manufacturer provided had been in writing rather than over the telephone. After Mr D complained through a Member of the House of Commons to the Ombudsman in November 1997, I wrote to the Permanent Secretary of DETR to ask for his comments.
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DETR's reasons for refusing access
3.7. During the course of Mr D's correspondence with VI and DOT both, on separate occasions, set out their reasons for withholding information from him without specific reference to exemptions in the Information Code. On the first of these (the reply from VI of 16 September 1996, paragraph 3.4 above) VI quoted reasons relating closely to two particular Information Code exemptions. These are;
'Information including commercial confidences, trade secrets or intellectual property whose unwarranted disclosure would harm the competitive position of a third party.' (Exemption 13) and:
'Information whose disclosure without the consent of the supplier would prejudice the future supply of such information.' (Exemption 14(b)) On the second occasion DOT (their reply of 29 November 1996, paragraph 3.5 above) referred, without specifically quoting it, to Exemption 14(b) but also (again without a specific reference) to Exemption 14(a). This refers to:
'Information held in consequence of having been supplied in confidence by a person who:
'was not under any legal obligation, whether actual or implied, to supply it and has not consented to its disclosure.'
I have also noted an internal minute from VI to DOT of 28 November 1996 in which it is stated that 'we have not chosen to inform Mr D of the spares demand (VI's question 6) which is very low anyway and, in my opinion, would be of no assistance in his action against the manufacturer'.
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3.8. When giving me his comments on behalf of the Permanent Secretary, the then Chief Executive of VI said that the successful operation of VI's vehicle safety functions depended on the principle that information obtained from manufacturers under the terms of the Vehicle Safety Code would not be disclosed to a third party (paragraph 3.2). A departure from that policy would undermine the vehicle industry's confidence in VI. He was satisfied that VI had made every effort to answer Mr D's letters as helpfully as possible. Copies of VI's correspondence with the manufacturer had been withheld under the Information Code exemptions, and VI had explained their reasons for this decision. The Chief Executive did not believe that Mr D had been prejudiced by VI's refusal to meet his request.
Investigation
3.9. As the correspondence provided to this Office suggested some uncertainty as to how VI had obtained information from the manufacturer, the Ombudsman's staff examined VI's papers in order to establish in what form information relevant to Mr D's request was held. They found no evidence to show that the manufacturer had produced a formal report for VI. The manufacturer had provided information by supplying answers to seven questions put to them by VI in their letter of 7 February 1996. The substance of those questions was relayed (although not in identical language) in VI's letter to Mr D of 21 October 1996. This letter, as had VI's earlier letter of 30 April, also provided some information relating to the manufacturer's replies to those questions. However, service information relating to ATF pipes and fuller information about the number of replacement pipes supplied by the manufacturer had not been disclosed, although the manufacturer had supplied that information to VI. The Ombudsman's staff also found that VI had telephoned the manufacturer to seek clarification of another of their answers. (VI had asked the manufacturer why they thought the ATF pipes might have failed as a result of ageing when they had only recently been fitted.) VI said they had no contemporaneous note of the conversation, but the Ombudsman's staff found that information obtained during the telephone call was recorded in an internal note to the then Chief Executive dated 2 June 1997. The manufacturer's response to that call was noted by VI but was also not disclosed to Mr D.
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Assessment
3.10. I look first at the requirements of the Vehicle Safety Code and how, if at all, they affect obligations under the Information Code I am considering. The then Chief Executive, in his comments to me, said that VI's working relationship with the industry depended on their undertaking, given in section 8 of the Vehicle Safety Code, not to disclose information obtained from manufacturers. It is however clear from the wording of section 8 (see paragraph 3.2 above) that VI have the power, if they think it necessary in the public interest, to make more widely available any information of which they are notified through the operation of the Vehicle Safety Code. There is a further proviso which states that VI will not publish commercially confidential information supplied to them unless there are very strong public safety reasons for doing so. The Vehicle Safety Code is not a statutory document: its provisions are therefore subject to the provisions of the Information Code and information covered by the Information Code can only be withheld by reference to one or more of the exemptions it contains.
3.11. My investigation has established that there was no report from the manufacturer. What they provided was answers to seven questions put to them by VI. And, although it was clear that the information was requested from the manufacturer under the terms of the Vehicle Safety Code, there is no indication in the manufacturer's reply that they saw any requirement for withholding from Mr D the information they had provided. As a result, in their letter to him of 30 April 1996, VI passed on the information provided by the manufacturer in relation to questions 1, 2 and 7. Following further correspondence, in their letter of 21 October 1996, VI provided details of the questions they had put to the manufacturer. This letter also gave the manufacturer's answer to question 5. It purported to give also the answers to the other three questions in respect of which information had not been supplied but, as I read it, the letter only fully answered question 4. The answers to questions 3 and 6 were not provided in full and I have noted earlier that VI did not think it appropriate to pass on to Mr D the information provided by the manufacturer in relation to the numbers of spares (question 6). It was not until this stage of the correspondence had been reached that Mr D raised the issue of the Code. I have seen no evidence to suggest that VI had in mind up to then the requirements of any Code other than the Vehicle Safety Code. I regard that as unfortunate and a cause for criticism. The Information Code has been in existence since April 1994 and should be taken into account in considering all requests for information even if not specifically quoted.
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3.12. VI have disclosed to Mr D all the information passed to them other than: the details of the service information distributed by the manufacturer; information relating to the demand for spare parts; and the information obtained over the telephone in order to clarify the manufacturer's opinion about the possible ageing of the pipes. I therefore need to determine whether or not any of that material is covered by the Information Code exemptions which VI have cited. Dealing first with Exemption 14(a); this exemption allows information obtained in confidence from a third party not to be released without their consent. VI have, however, already disclosed most of the information supplied by the manufacturer and I have seen no evidence to suggest that consent for that disclosure was sought. Nor have I seen any evidence to suggest that the undisclosed information was specifically identified as confidential. I must conclude, therefore, that the information contained in correspondence and in the telephone discussion between VI and the manufacturer about Mr D's vehicle does not come within the scope of Exemption 14(a).
3.13. Exemption 13 in effect deals with commercially confidential information and also incorporates a harm test which requires it to be established, before the exemption can apply, that disclosure of the information at issue would harm a company's competitive position. VI have already disclosed most of the information provided by the manufacturer and have supplied no evidence to suggest that any harm of the kind described in the exemption might arise if the remainder were also to be disclosed. I do not therefore accept that this exemption applies.
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3.14. The final exemption cited, Exemption 14(b), is also subject to a harm test. It is of course possible that a company party to the Vehicle Safety Code might choose not to provide information to VI under the terms of that Code if it believed that VI might pass that information on more widely without first seeking consent. However, in relation to most of the information supplied by the manufacturer, that is what VI appear to have done here. In order for me to apply this exemption to the undisclosed information provided by the manufacturer, I have to see evidence that, either as a result of the disclosures which have already occurred, or in relation to any possible future disclosure, the manufacturer has indicated a concern about the information released and/or reluctance to provide similar information to VI in the future. I have seen no such evidence. I am therefore satisfied that VI do not make out a sound case on the exemptions they have quoted because they have disclosed most of the information already and because they have produced no evidence to suggest that the manufacturer objected to any of those disclosures.
3.15. VI have not handled this matter well. Their early responses to Mr D did not take into account the requirements of the Information Code at all. By the time Mr D drew the Information Code to their attention VI had, as it happens, disclosed to him most of the information with which the manufacturer had supplied them (although Mr D has had, perhaps understandably, some difficulty in accepting this). VI (and DOT, who were consulted) should have taken this opportunity of recognising that the small amount of undisclosed information ought to have been made available to Mr D rather than try to seek to avoid disclosure. This information could have been made available to Mr D without the need to disclose actual documents, as indeed the other information was: the Information Code makes it clear that rights extend only to information, not to actual documents. This Office has, however, suggested in the past that disclosure of an actual document or documents may be the simplest way of making information available. I therefore invited the present Chief Executive to consider disclosing the remaining information (including that obtained orally), and to consider the Ombudsman's previous recommendations when deciding how it should be disclosed. I also invited VI to remind their staff of the requirement to consider all requests for information as requests made under the Information Code and to remind staff of the distinction drawn by the Information Code between documents and information.
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3.16. The present Chief Executive accepted the criticisms of VI's handling of Mr D's requests. He agreed that there was a need to remind staff at VI of the requirements of the Information Code. He said he would ensure that guidance on the Information Code was issued to staff, reminding them of the distinction drawn by the Information Code between documents and information. I welcome that decision. Regarding my recommendation that information be disclosed, however, the Chief Executive expressed concern that my findings in this case would create a precedent which might jeopardise VI's ability to obtain information under the Vehicle Safety Code. I assured him that was not so: the fact that I am recommending disclosure in this case does not mean that I would necessarily do so again if there was clear evidence that a manufacturer had either not consented to disclosure of information provided by them or had resisted disclosure of it. After further discussion I invited VI to contact the manufacturer direct in respect of the information which remained undisclosed, as VI had expressed the view that they could not disclose without the manufacturer's permission (although my investigation has established that this permission was not sought in respect of the information already disclosed). VI agreed to this and, I am happy to report, the manufacturer expressed no objection to the proposed disclosure. It would undoubtedly have made matters much simpler had VI approached the manufacturer a great deal earlier. I am pleased to note that VI have now devised a pro forma, a copy of which I have seen, which they will send to manufacturers when they receive requests for information in the future. I regard that as a positive step forward.
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Conclusion
3.17. VI accepted my criticisms of their handling of Mr D's request. They have also accepted my recommendation that they release the additional undisclosed information to him. They propose to do this by copying to Mr D the letter and enclosures from the manufacturer dated 28 February 1996, which were sent in response to VI's letter of 7 February, and by conveying to Mr D the additional undisclosed information referred to in paragraph 3.9 of this report. I consider that to be a satisfactory outcome to this investigation. I uphold the complaint.
Total screening and investigation time = 29 weeks
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