17.1. Guiding principles

Our organisational values include treating people with openness and honesty and respecting their privacy. These values apply to both complainants and others involved in the complaint and reflect our legal obligations and society’s expectations. Generally, complainants have rights to see information we hold about them. But they have no general rights to the personal data of others, including that of BinJ employees and other third parties. Detailed guidance on the General Data Protection Regulation (GDPR), Data Protection Act, Freedom of Information Act and Environmental Information Regulations, including the strict timescales for compliance, is set out in the Information Sharing Manual.

The Information Sharing Manual contains instructions we must consider when sharing information with complainants, Bodies In Jurisdiction and others. Its key principles are:

• Ensure you have consent to share
• Only share what is relevant to the decision
• Do not share third party information
• Do not share personal data the complainant is not entitled to see
• Ensure you have consent to share
• Be mindful of safeguarding
• Delete irrelevant/ duplicate information
• Make your enquiries focused and specific
• Do not accept embedded documents
• Record reasons for sharing/ or not sharing information
• Clearly mark information that cannot be disclosed and move the unredacted version to the Do Not Disclose folder

The manual contains more detailed information about confidentiality, enquiries to the BinJ,  sharing data with complainants, use of the Do Not Disclose and Data Not Shared folders in ECHO, Notes and Analysis, redaction, sending sensitive casework material by email or post and Frequently Asked Questions.

If you are unsure of how any of this relates to your complaint, please speak to your manager, the Chair of the Information Working Group or our Data Protection Officer.

Our starting point is that we should share with both parties to the complaint the information we rely on to make our decision. But we may have large volumes of other material which is not directly relevant. If it is not being relied on, it need not be passed on. If requested, we will normally provide the complete complaint file to the complainant, which can require very significant redaction. It is also more difficult to manage a file with large volumes of unnecessary material, so extraneous material should be destroyed or returned as soon as practicable when it becomes clear it is not relevant. 

To ensure we have just the information we require:

• We should not go on fishing expeditions. We should be specific about what information we want and the time period covered by our investigation. We should actively discourage all parties from providing unnecessary information and destroy or return unnecessary material.
• We should only keep relevant information. We should not keep information we will not use in decision making. (See Record keeping and ECHO.)
• Our normal practice is to provide a copy of the complaint to the BinJ. We refer to this in our literature.
• We ask the BinJ to redact any third party information it sends to us and also to provide an unredacted copy as appropriate. If it does not redact, we think there is third party information, and the BinJ has not stated its position on disclosure, we need to contact the BinJ to see whether it would disclose the information. This particularly applies to officer names, given we know BinJs have different approaches to this. If the BinJ does not reply, or refuses to redact, the onus is on us to remove the third party information. 
• Investigators need not withhold third party information which is in the public arena or is clearly in the complainant’s possession. 
• Generally, we cannot pass on information obtained in the course of or for the purposes of an investigation except for the purposes of that investigation or report. So, if material is not needed for the investigation it should not be passed on or retained. 
• Sometimes information is provided to us in confidence, or in error, or we otherwise consider it should not be passed on and should be deleted from ECHO.
• All information which we would not pass on (including legal advice) should include DO NOT DISCLOSE in the title and be kept in the folder of the same name.
• Information should not be withheld merely because it is embarrassing to us or to any other party.
• If Investigators are unable to pass on information, they should explain why.

17.2. Section 32(3) notices

Our Manual for Councils explains to link officers the purpose of a s32(3) notice and the circumstances in which it might consider serving one. See also the Local Government Act 1974.

BinJs (other than adult social care providers under Part 3A) may serve notice under s32(3) of the LGA 1974 which, if valid, may prevent us sharing the specified document or information. This is a statutory process which pre-dates modern data protection laws (such as GDPR). For example, a BinJ does not need to serve a s32(3) notice to prevent the disclosure of personal data about an employee or third party because current data protection legislation prevents us disclosing it anyway.

Investigators should record any notices served in ECHO and inform their manager. We should not normally invite the serving of a notice.

By law, s32(3) notices cannot be served electronically. If Investigators receive an electronic s32(3) notice, they should contact the BinJ and ask it to re-serve it through the post, using the Coventry PO Box address. While we do not have a valid notice, as the BinJ clearly intends that any documents or information named in a s32(3) notice should be treated as confidential, we should not share them with a complainant, representative or third party while waiting for a notice which complies with the law.

If an Investigator is concerned about a s32(3) notice they should query it with the BinJ in the first instance. If the BinJ maintains its position, and the Investigator is still not satisfied, they should raise the matter with their manager. If necessary, we can apply to the Secretary of State to discharge a s32(3) notice.

17.3.  What to do when complainants tell us they intend sharing information with others

We tell complainants that the law says we must investigate in private and that they should not discuss or share information we send about the case, including our draft decision with the press or through social media. Sometimes, despite this, complainants tell us they intend to share information we have provided as part of our enquiries, or we may become aware they have already done so, for example by sharing our draft decision on social media.

Section 32 (2) of the LGA 1974 says information should only be disclosed for the purposes of our report or statement of reasons. The courts have previously confirmed this bar applies to recipients of information from the Ombudsman, as well as the Ombudsman himself. R (Kay) v Health Service Commissioner [2008] EWHC 2063 (Admin) considered this in relation to the PHSO. Sections 59-60 of that decision confirm the complainant has to maintain confidentiality.

The judge in that case found that “information disclosed to the ombudsman in the course of or the purpose of the litigation shall not be disclosed except for the purposes of the investigation and any report to be made in respect of it. In my judgment that applies to those receiving the information from the Commission [PHSO] itself… It would be an absurd position if the ombudsman was restricted as to the situations in which she could disclose the material, only for the material to be used by others for reasons outside the ambit of the ombudsman’s investigation and report.”

Where complainants say, despite this advice, they intend to share information, or we find they have done so, we should remind them of this restriction and ask them to comply, advising them of potential risks, (including when relevant to them being at risk from libel action by a third party). We can decide to require specific undertakings before we share further information or documents. Advice should be sought in such circumstances from an Assistant Ombudsman.