Home > Publications > Special Reports - Access to Official Information > AOI: Monitoring of the non-statutory codes of practice 1994-2005 > Section 4 - The cases
1. If any of the work of the Ombudsman on policing the Codes of Practice is found to have any enduring value it will be the work done through the investigation of individual cases. What this section looks at is around 20 such cases which, in one way or another, are of significance or interest and not all of which will necessarily have been widely noted at the time. The volumes of investigated cases do however contain many others worth looking at beyond those set out here. The cases are set out below and have been divided into four categories. The landmark cases
2. In Section 3 mention has already been made of a number of cases that played a significant role in the history of the Office's involvement in the Codes. They will not be referred to again here but they do, for obvious reasons, fall into the category of landmark cases. Others that might also be described in this way would certainly include A4/94.[1] This was the first full Code investigation that the Office completed.
Proposed Birmingham Northern Relief Road Scheme
3. The information sought was the report of an Inspector who carried out an inquiry into the proposed Birmingham Northern Relief Road Scheme on behalf of the Department of Transport. Although such reports were normally required to be released by law this one was not as the Scheme had been replaced by a new one before such a release became mandatory. The Department cited Exemption 2 (internal discussion and advice) and Exemption 4 (legal proceedings).
4. The Ombudsman found neither of these exemptions to apply. Aside from being the first full case, this investigation is noteworthy as the Department not only agreed to release the information sought but, in future, to release other reports withheld in similar circumstances. The Ombudsman also ruled in this case that, although the Code applied to information and not to documents, if the information was to be released then the easiest way of doing it was by means of the document itself. The Ombudsman also issued the reminder, not (as it turned out) for the last time, that if information were to be refused the exemptions under which the information was being withheld should be clearly cited.
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Department of Social Security internal guidance on special payments
5. An investigation which gave the Office particular satisfaction was A40/95.[2] This case (the complainant was a well-known journalist in the field of consumer affairs) related to a refusal by the then Department of Social Security to allow him access to their internal guidance on special payments. They cited Exemption 7 (Effective Management and Operations of the Public Service). This guidance was contained in two volumes. Following the intervention of the Ombudsman DSS reconsidered their position and agreed to make both volumes generally available, the first as a priced publication and the second on request.
6. Although not required to rule on the relevance of Exemption 7 the Ombudsman said, in passing, that it was unlikely to be applicable. The Office's view was that, by publishing the information, the Department were now adhering to the requirement in paragraph 3(ii) of Part I of the Code to make such guidance available. This case, and the publicity given to the decision, played a significant part in encouraging a more proactive approach from government departments towards making such internal guidance routinely accessible, in accordance with the Code's intention.
Ilisu Dam Project
7. This report has already shown how the Ombudsman became increasingly involved in having to assess information requests relating to matters of current political controversy. An early example of this was A31/00.[3] This was the first of the two cases requesting information relating to the controversial Ilisu Dam project in Turkey. This one involved the Export Credits Guarantee Department, which was supporting a British company involved in the dam project. The complainant had sought information relating to the company's application for export credit support, which the Department had refused to release, citing both Exemptions 13 (commercial in confidence) and 14 (information provided in confidence), as well as the common law of confidence.
8. The Ombudsman decided that the request had also incorporated an Environmental Impact Assessment Report that had been prepared but concluded that this was not a matter for him as a request for this document had already been considered (and turned down) under the Environmental Information Regulations 1992, which took precedence. (This therefore become one of the small number of Code cases which has involved considering the applicability or otherwise of the Environmental Information Regulations). On the key issue the Ombudsman took the view that Exemption 13 did indeed apply to the information sought but that the public interest test in this instance operated in favour of disclosure. However, the Department obtained a legal opinion to the effect that, if they were to disclose the information without the consent of the company, which was not forthcoming, they could lay themselves open to legal action for breach of confidence. On that basis, the Ombudsman decided not to recommend release of the information. While the Code clearly stipulated the position in respect of statutory prohibitions, it was silent on common law issues. In an earlier case (A22/94) [4] Sir William Reid had ruled, when the Ministry of Agriculture, Fisheries and Food raised a similar argument, that it was not appropriate to support a case for refusing to provide information on grounds that were not referred to in the Code. However, in that case, he had also accepted the Department's argument for not releasing the information under Exemption 13.
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Background notes to Parliamentary Questions
9. One of the perennial difficulties for departments under the Code was facing a request for information of a class that had never been previously made available. Traditionally the background notes and proposed replies for Ministers in response to Parliamentary Questions were never made public but in this case, A25/03,[5] the complainant, an MP's researcher, had asked the Cabinet Office to see information relating to briefing prepared by officials in relation to Parliamentary Questions asked of that Department by the MP. (Interestingly, under the Data Protection Act, the Cabinet Office had already had to release to the MP personal information about him contained in that briefing.) The Cabinet Office said that such background notes were exempt from release under Exemption 2 of the Code as they were essentially discussion and advice. On review the Cabinet Office, while accepting that much of the background material was factual, argued that releasing it would nevertheless constrain the future provision of full and frank advice in such cases.
10. The Ombudsman said that factual information was not protected by Exemption 2. In the event the Cabinet Office agreed to release the factual information and, in addition, some of the advice while not committing themselves to making a similar response in respect of any
furture requests. The Ombudsman's report made it clear that the principal objection had been to the Cabinet Office attempting to withhold information on the basis of a class exemption: each item of information needed to be dealt with on its individual merits. This did not prevent, following some inaccurate press reporting, departments assuming that in future all such background information now had to be routinely released if requested; a degree of reassurance that this was not what the ruling meant had subsequently to be provided.
Back to top The heavyweights
Reprocessing of nuclear fuel at Dounreay
11. A feature throughout the operation of the Code has been the ‘heavyweight’ case; those investigations where the common features were on the one hand, the complexity and volume of the material and, on the other, the political sensitivity surrounding it. The outcome, not infrequently, was a very lengthy and often disputatious investigation. A good early example of that was A1/95.[6] This was an immensely complex case, put by an interest group who asked the Department of Trade and Industry six specific and very wide-ranging questions about the reprocessing of nuclear fuel at Dounreay. Some information was provided, for which the Department charged the complainant £375. The Department refused to release the remaining information, citing Exemption 13 (commercial in confidence) in respect of some of it but also citing the fact that some of the background papers sought were in fact papers of Cabinet Committees or sub-committees. There is a statutory bar on the Ombudsman's access to such papers. The Department concluded that Exemption 13 had been correctly applied and that the charge of £375 was reasonable. This case took the best part of two years to complete, occasioned primarily through the nature of the information sought and the breadth of material that therefore needed to be considered in order to decide the extent to which the Code had been correctly applied.
12. While broadly endorsing the Department's approach the Ombudsman concluded that more might have been done to manage the complainant's expectations at the outset, an early example of the value of attempting to focus a request whenever possible. There were two other interesting aspects to this case; it was one of the very few occasions on which the Ombudsman was required to rule on the issue of charging, and the Ombudsman also commented unfavourably on the Department's review system, which was subsequently reduced to a single stage process.
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Sale and export of a multi-purpose riot gun
13. Another contentious case was A30/95.[2] In this case the complainant had sought information from the Department of Trade and Industry about the sale and export of a multi-purpose riot gun. The Department had refused, citing Exemptions 1(b) (international relations or affairs) and 13 (commercial in confidence). This case, which was considered in the wake of the Scott Report on the export of defence-related equipment to Iraq (and to which many references are made in the Ombudsman's report), contained a number of interesting aspects. The Department, when asked to provide to the Ombudsman the information that formed the subject of the complaint, claimed that they could not realistically do so because it was mostly contained on manual files that could not be searched without an unreasonable expenditure of time and effort.
14. The Ombudsman's investigation confirmed this to be the case. There was, however, more recent information held on computer databases and, after some difficulty, some information relating to these products was obtained (after the Ombudsman's staff had taken the opportunity of interrogating the database themselves. The manufacturing company argued that under Exemption 13 the information should not be released but the Ombudsman took the view that unless it could be shown that individual sales were covered by a confidentiality clause the information ought to be made available. This view was eventually accepted. While recognising the complexity of the case, the Ombudsman criticised the Department for lengthy and avoidable delays, particularly in carrying out the computer searches.
Development of policy leading to the Human Rights Act 1998
15. The passing of the Human Rights Act 1998 was a major landmark of the Labour administration that took office in 1997. In this case (A33/02) [7] the complainant, a peer, requested information relating to the development of policy, from both the Home Office and the Lord Chancellor's Department, leading up to the passing of the legislation. This information was refused under Exemption 2 (internal discussion and advice). Both departments argued that there were no public interest grounds in releasing the information.
16. The Ombudsman's staff considered some 69 files of documentation but many other files were withheld from examination because they were, in effect, Cabinet papers as they had been prepared for the Cabinet Committee developing policy in this area and this therefore became one of those few cases in which the Cabinet Secretary served a notice under section 8(4) of the Parliamentary Commissioner Act 1967 to prevent the Ombudsman from seeing the papers. (A similar notice was served in A23/99).[8] The Ombudsman accepted that most of the information did fall within Exemption 2 but believed, unlike the departments, that there clearly was a public interest in this matter and that the application of the harm test should allow at least some of that information to be released. This recommendation was accepted.
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NAO Report into the al Yamamah Arms Contract
17. A case which once again involved finely balanced aspects of the public interest test was A10/04.[5] The complainant in this case had requested from both the Ministry of Defence and the Foreign and Commonwealth Office information relating to a National Audit Office report into the al Yamamah arms contract, including the report itself. There were a number of interesting facets to this case, not least the fact that the NAO report had been made to Parliament through the Public Accounts Committee and thus fell under that part of Exemption 15 that covered Parliamentary privilege - the only time that this particular aspect had arisen in a Code case.
18. The Ombudsman, as part of the investigative process, confirmed through its current Chairman that the Public Accounts Committee still wished the report to be kept secret. As well as Exemption 15, Exemptions 1(b) (relations with a foreign power) and 2 (internal discussion and advice) had also been cited. While again recognising the existence of a strong public interest the Ombudsman took the view that the harm test in this case operated in favour of withholding most of the information sought although some additional information was released into the public domain. Part of the Ombudsman's thinking in this case was dictated by the fact that a Memorandum of Understanding had been signed in 1986 between the United Kingdom and Saudi Arabia governments and was still in force: this contained an explicit commitment that classified information should not be released.
Advice on purchase of smallpox vaccine
19. An almost intractable case was A14/03.[5] which was characterised by, and substantially delayed as a result of, the Department of Health's unwillingness to engage with the investigation. In this case the complainant had asked the Department for information relating to the work of the Joint Committee on Vaccination and Immunisation in respect of the advice they had given about an appropriate strain of smallpox vaccine for purchase by the United Kingdom. The Department cited four exemptions; 1(a) (defence, security and international relations), 2 (internal discussion and advice), 7 (effective management and operations of the public service) and 13 (commercial confidentiality).
20. Although, at the end of the day, some information was released, prompted in part by the fact that a National Audit Office report about the procurement of vaccines had effectively put the story into the public domain, the Ombudsman was critical not only of the way in which the Department had handled the request itself but of their unwillingness to respond to her investigation. This manifested itself to the extent that, even at the end of the process, the Department had still failed to answer some of the points raised by the complaint. (Bizarrely, it was only after the investigation had concluded that the Department decided to release further information, although still without dealing with all of the outstanding issues).
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Legality of military intervention in Iraq
21. One case that should not be overlooked is A35/04 [5]. This was the case in which the complainant had asked to see all the documents drawn up by the Attorney General that had provided advice on the legality of military intervention in Iraq. This case, although highly controversial, caused relatively little difficulty for the Ombudsman. The Cabinet Office, from whom the information had been sought, had cited Exemptions 4(d) (legal professional privilege) and 2 (internal discussion and advice) to justify withholding the information. As Exemption 4(d) is an absolute exemption which does not require the consideration of harm, the Ombudsman, satisfied that all the information sought fell within that exemption, was able to conclude that the information should not be released.
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Releasing information
Application for a grant under the SMART Award Scheme
22. One of the Office's achievements, through a succession of cases, has been to press successfully for the release of information which might not otherwise have found its way into the public domain. It was never the Ombudsman's role to act as a crusader for openness but indirectly, through making judgements about whether or not the Code has been correctly applied, the Ombudsman's report has led to new information being released or changes made which will lead to the release of more information in the future. For example, in A11/99,[9] the Department of Trade and Industry refused to release information to an unsuccessful applicant for a grant under the (then) competitive SMART award scheme, although they had provided him with some additional information in response to his first request. Included in the information sought by the applicant was; access to his own file, including the advice that had been given by specialist advisers in respect of his application; details of all the other grant applicants and for further information as to why his application had been unsuccessful. The Department cited Exemptions 2 (internal advice), 7(a) (discretionary grants) and 13 (commercial in confidence).
23. The Ombudsman accepted that the Department had correctly applied the exemptions to the information sought but did take the view that more information should have been provided to the complainant to explain why his application had not been successful. As a result the Department agreed to revise their guidelines to ensure that in future unsuccessful applicants to the scheme would routinely receive fuller explanations as to why they had not been awarded a grant. This was an example of an investigation where, although the Ombudsman had been unable to significantly assist the individual complainant, an outcome was obtained that would hopefully benefit future applicants in terms of the amount of information made avai lable.
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Information about the drug Myodil
24. A case in which the Ombudsman's intervention led to information being released without breach of confidentiality or privacy was A13/99.[8] In this case the complainant was seeking information from the Medicines Control Agency about a drug known as Myodil. The Agency told the complainant that most of the information they held had originated from the company manufacturing the drug and they were therefore withholding the information under Exemptions 13 (commercial in confidence) and 14 (information given in confidence). Information held in internal papers was also being withheld, under Exemption 2 (internal discussion and advice).
25. Following an approach by the Ombudsman the company agreed that much of the information sought could now be released but they were concerned that individuals referred to in papers and through the operation of the yellow card drug scheme (for the reporting of adverse reactions to drugs) should not be identifiable. In this case therefore much of the information was ultimately released through the simple processes of anonymisation (in respect of the papers) and summaries (in terms of the adverse reaction reports), thereby enabling information to be provided in accordance with the Code without breaching either confidentiality or privacy. This ‘creative’ approach to the provision of information, particularly in cases where the release of actual documents might involve difficulties, was successfully followed in a number of cases.
Second Investigation into the Ilisu Dam Project
26. The issue of the Government's involvement in the Ilisu Dam project in Turkey produced a second investigation, A26/01.[10] This involved a request to the Foreign and Commonwealth Office for copies of correspondence between them and the Department of Trade and Industry on matters relating to human rights issues in Turkey. This information was refused under Exemption 1(b) (international relations and affairs) and Exemption 2 (internal discussion and advice). Following the Ombudsman's investigation (involving some 25 files) it was decided that, although much information was already in the public domain, some of the information was clearly covered by the two exemptions cited: however, there was also a strong public interest in information about a highly controversial issue being made available. The Ombudsman's recommendation, bearing in mind that the Code afforded no right to documents, was that a summary of the information contained in the documents sought by the complainant should be prepared and released. This was accepted by the Department.
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Information about a consultation exercise
27. One particularly pleasing outcome of an investigation is when information is released not just to the requester but into the public domain more widely. In A13/02 [11] the Department of Health had been asked to provide information relating to a consultation exercise; in particular the complainant had asked to know how many responses they had received where confidentiality had been requested and for sight of all the responses where confidentiality had not been requested. This was refused under Exemption 10 (publication and prematurity) and
Exemption 14 (information given in confidence).
28. The Ombudsman found Exemption 10 to apply to some of the information but not Exemption 14, while recognising that it might be reasonable to withhold the addresses of individuals who had responded on a nonconfidential basis, as opposed to organisations. Following the publication of their analysis of the responses to the consultation the Department not only released the information to the complainant on the basis described above but published on their website all of the replies received where confidentiality had not been requested.
Incidents and accidents involving British nuclear weapons
29. There is a general acceptance of the principle that, in most cases, information decreases in sensitivity as it ages. In A12/03 [5] a complainant requested from the Ministry of Defence information relating to various incidents and accidents involving British nuclear weapons since 1960. The department refused, citing Exemption 1 (defence, security and international relations). Part of the Department's argument was based on the NATO policy that the presence of nuclear weapons in a particular place at a particular time should neither be confirmed nor denied. The Ombudsman pointed out that the release of some information about some of these events had in effect already breached that policy, although the Department subsequently explained that this was not quite the case. The Ombudsman, while recognising that the information fell within the exemption, nevertheless took the view that there was a strong public interest; equally, it was unlikely that significant harm would be caused by the release of information about accidents and incidents, some nearly 40 years old, and all relating to obsolete weapons systems. This was particularly the case when some information, not all of it accurate, had already entered the public domain: releasing the correct information might end damaging speculation. Following lengthy discussion the Department agreed to make the information available.
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Odds and ends
30. This section describes a number of cases which either raised unusual issues or were interesting for their subject matter. Included here is one of the very few NHS Code cases the Office investigated. Tailored versions of the Code
31. Some departments, particularly smaller ones, never quite grasped the fact that the Code was a given document and the Ombudsman investigated one or two cases where it was discovered that a body had simply adapted the Code for their own purposes. In A43/96 [2] the Commission for New Towns had not taken the Code as published in 1994 but had tailored it to meet their own requirements. As part of his judgement the Ombudsman made it clear, as in other cases where this issue arose, that the Code could not be modified in this way and that organisations were required to abide by the Code as published in 1994 (and as subsequently amended in 1997).
Underground and bus ticketing services and revenue collection
32. The Ombudsman frequently had to deal with cases where Departments succumbed to the temptation to cite, at a very late stage, exemptions that they had not previously thought of, usually when their initial arguments had not found favour. One such was A2/01 [3]. This case involved a request to the Department of the Environment, Transport and the Regions for information relating to a decision in respect of the awarding of a contract relating to ticketing services and revenue collection on London Underground and Buses. The Department refused to release that information citing Exemption 2 (internal discussion and advice). Although accepting that the information fell within that exemption the Ombudsman concluded that the public interest test operated in favour of disclosure and this was recommended in the draft report. At that stage the Department cited three more exemptions; 7 (effective conduct of public affairs), 13 (commercial in confidence) and 14 (information provided in confidence). The Ombudsman accepted that Exemption 13 did apply to the information sought but strongly criticised the Department for failing to put their full case in terms of exemptions at the outset. A similar case, involving this time a statutory prohibition which was only declared at the time the draft report was issued, was A4/01.[10]
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Vexatious and voluminous complaints
33. Vexatious and voluminous complaints (Exemption 9) presented a particular difficulty. A9/02 [12] was a prime example. The complainant, a former solicitor who had moved to Australia, bombarded the Legal Services Commission over a period of several months with a succession of e-mails seeking information relating to a range of law cases for which he claimed he was owed fees by the Commission. The Commission held 23 volumes of papers relating to the complainant's company. The e-mails, sent over a period of several months, totalled several hundred and an estimate covering one week chosen at random suggested that it would have taken between 28 and 30 hours work to furnish all the information sought through that week's e-mails. The Commission had on several occasions tried to persuade the complainant to focus his requests more narrowly to make it easier for them to deal with but the complainant proved unable or unwilling to respond.
34. The Commission applied Exemption 9 and the Ombudsman had no difficulty in endorsing this view. This was a relatively straightforward case (although it is not surprising to learn that the complainant's view was very different) but others have proved less so, for example A3/97 [2] where the volume of requests, although extensive, was fewer and where the complainant appeared to be interested in engaging in a debate about policy while ostensibly pursuing information requests, thus tending towards the vexatious. All cases involving this exemption have been contentious and there is little doubt that this is an area where it is very difficult to establish objective criteria by which the categorisation of someone as voluminous/vexatious can be easily undertaken.
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Rendlesham Forest incident - UFOs
35. An interesting aspect of investigating Code complaints was the enormous breadth of subjectmatter covered by the requests. The belief that government departments are sitting on a wealth of unreleased and potentially de-stabilising information about UFOs, alien landings and X-file related phenomena is one that dies hard and was put to the test on a couple of occasions. One such was the case (A29/02) [13] where the Ministry of Defence had been asked to release information relating to the famous Rendlesham Forest incident (recently alleged to have been a hoax). Although the Department had disclosed substantial documentation about this incident they had refused to release three documents, citing Exemption 2 in justification (internal advice and discussion). The Ombudsman noted that the information in the documents, which were background notes and draft briefing for Ministers in response to a Parliamentary Question, clearly fell within the exemption. The Department had argued that, as the information contained in the documents was already in the public domain, no public interest would be served by releasing it.
36. The Ombudsman took the view that there was no public interest being served in the continued protection of information that was mostly already in the public domain and which
was, in addition, over 20 years old: where could the harm lie? The Department re-considered and accepted this view, releasing the information not only to the complainant but to others who had previously requested it and been refused. The Ombudsman received several congratulatory e-mails from members of the UFO community following this decision, including one from Alaska.
Back to top Information about the supply of drugs
37. Finally, a case investigated under the NHS Code, J7/95/96.[14] In this case the complainant had requested from Leicester Royal Infirmary NHS Trust information relating to the supply to a ward of two specified drugs and ward records of the running balances of those two drugs. The Trust refused the request under Exemption (ii) (request too general and unreasonable) and Exemption (vi) (personnel management). They also said that the information was of a kind that was beyond the ambit of the Code.
38. The Ombudsman held that the first exemption did not apply as, although the complainant had been in regular contact over a range of matters, he had only written twice in relation to this particular subject. The Ombudsman also held that the second exemption did not apply either: although it related to a personnel issue (the suspension of a nurse) providing the information would not interfere with the personnel function. The Ombudsman rejected the argument that the Code could not be held to apply to the information sought as the Code related to all information held by the body concerned and it could only be withheld if a case could be made out by reference to particular exemptions. The case took some time to complete, due in part to having to deal with the Trust's view that the complaint was outside the Ombudsman's jurisdiction (he did not agree).
References
1 Parliamentary Commissioner for Administration First Report - Session 1994-95
2 Parliamentary Commissioner for Administration Fourth Report - Session 1997-98
3 Parliamentary Ombudsman Investigations Completed April - December 2000 (HC 126)
4 Parliamentary Commissioner for Administration First Report - Session 1995-96
5 Parliamentary Ombudsman Investigations Completed July 2003 - June 2004 (HC 701)
6 Parliamentary Commissioner for Administration First Report - Session 1996-97
7 Parliamentary Ombudsman Investigations Completed November 2002 - June 2003 (HC 951)
8 Parliamentary Ombudsman Investigations Completed April - October 1999 (HC 21)
9 Parliamentary Ombudsman Investigations Completed November 1998 - March 1999 (HC 438)
10 Parliamentary Ombudsman Investigations Completed January - June 2001 (HC 160)
11 Parliamentary Ombudsman Investigations Completed July 2001 - January 2002 (HC 585)
12 Parliamentary Ombudsman Investigations Completed February - April 2002 (HC 844)
13 Parliamentary Ombudsman Investigations Completed May - October 2002 (HC 115)
14 Report of the Health Service Commissioner Selected Investigations - Access to Official Information in the National Health Service (HC 62) 1996
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