The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s response to subject access requests and freedom of information requests. This is because the Information Commissioner’s Office is the appropriate body to consider this complaint.
The complaint
The complainant, whom I shall call Mr X, complains on his own behalf and on behalf of Mr Y. He complains about the Council’s responses to their requests for information.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended) We do not start an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B)) We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended) The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X complained to the Council about its responses to his freedom of information requests and Mr Y’s subject access requests. Mr X said the Council was obstructive and incorrectly applied exemptions in order to avoid providing some of the information they requested.
In its complaint response, the Council maintained its decision to withhold some of the information. It signposted Mr X to the Information Commissioner’s Office (ICO) in its final response should he remain dissatisfied.
We will not investigate this complaint. This is because this is a complaint about data matters which are best considered by the ICO which is the body set up to consider such matters. The Council has appropriately signposted Mr X there.
This complaint is about data matters but Mr X also referred to some related employment matters in his complaint to this office. The law prevents us from investigating complaints about employment or personnel issues. They lie outside our jurisdiction and we have no discretion to consider such matters and so I have not considered them here.
Final decision
We will not investigate Mr X’s complaint because it is about data matters which are best considered by ICO. Also, on the freedom of information issue there is a right of appeal against the ICO’s decision to the First Tier Tribunal which it is reasonable to expect Mr X to use.
Investigator's decision on behalf of the Ombudsman