Home > Publications > Special Reports - Access to Official Information > AOI: Monitoring of the non-statutory codes of practice 1994-2005 > Section 2 - Investigations under the Code - basic practice and procedure
1. The Ombudsman carried out investigations into both Codes on the basis of the powers set out in the legislation covering the jurisdiction of both the Parliamentary Commissioner for Administration and the Health Service Commissioner (and, when those functions were being exercised for Scotland and Wales, the relevant legislation covering those posts).
First steps
2. While it was occasionally possible to resolve complaints informally, in most cases they proceeded to full investigation. Such investigations would be carried out in much the same way as those covering traditional maladministration. The process began by the Office issuing a statement of complaint to the body complained of setting out the substance of the complaint, in this case the failure to provide the information sought (which would be described) and, to the extent that they were known, the exemptions under which it had been refused. A response would be invited from that body, normally within three weeks, and relevant papers requested: crucially, these would be expected to include the information sought by the complainant. (Sometimes, usually when the information was contained in a substantial number of files or was particularly sensitive, it would be necessary to examine the information in situ). Provision to the Ombudsman of the information in dispute occasionally caused considerable difficulty (see Section 3).
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Investigation
3. The next stage of the process involved an examination of the withheld information and making a judgement as to whether some, all or none of it should be released. This involved looking critically at any exemptions cited by the relevant body and deciding whether or not they had been applied correctly. The investigation also examined how the relevant body had handled the request in respect of the Code requirements. At the end of this process a report,
setting out the Ombudsman's analysis and recommendation, would be sent in draft form to the body complained against. The purpose of this was twofold; to ensure that the report correctly reflected the factual background and to invite comment on the Ombudsman's recommendations. Again, three weeks were normally set aside for the relevant body's response. (It was not customary to send a copy of the draft report to the complainant, although practice on this is now changing within the Office generally). Following receipt of the relevant body's comments the report would be finalised and issued, although this might be preceded by further discussion and negotiation depending upon the nature of the relevant body's response.
Appeal mechanisms
4. There is no appeal against a decision of the Ombudsman other than through judicial review. However, the Ombudsman reports to Parliament through a Select Committee. Until 1997 that was through the Select Committee on the Parliamentary and Health Service Commissioner: since then it has been through the Select Committee on Public Administration, a Committee with a very much wider brief. The Select Committees have frequently taken evidence from successive Ombudsmen on their stewardship of the Codes. The Select Committee on Public Administration also took evidence from those Government departments which had refused to accept recommendations from the Ombudsman in respect of the release of information following Code investigations (see sections 3 and 4).
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Publications
5. The number of cases subject to full investigation by the Ombudsman under the various codes was relatively small (a full statistical
summary is contained in Appendix 4). This allowed the Office to publish all of these investigations (anonymised where appropriate) and lay them before Parliament on a regular basis. The reports are printed as House of Commons papers and have been regularly published since 1994: a full list is available in the bibliography. All of the reports from 1997 can be found on the Ombudsman's website: earlier reports are available in hard copy from The Stationery Office.
Wider activities relating to the Code
6. The Ombudsmen themselves and their staff have frequently lectured on the Office's work on the Codes and have contributed to training courses: for example, members of the Ombudsman's staff regularly featured as guest speakers on the Civil Service College's ‘Open Government’ training courses and the Office provided speakers for a number of the roadshows organised by the Department for Constitutional Affairs in the run-up to the FOI Act. The Office has also been represented, where appropriate, on advisory groups and working parties, most recently on the Department for Constitutional Affairs' Advisory Group overseeing the introduction of the new legislation. A number of independent studies which refer to or examine the work of the Ombudsman in this area have also been published; a list is included in the bibliography.
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