Summary: We will not investigate this complaint about how the Council handled Mr X’s request to delete records. The Information Commissioner’s Office is best placed to consider the substantive issues and we could not achieve anything further by investigating.

The complaint

1. Mr X complained the Council included incorrect and distressing comments about him in his records. The Council has refused to delete these records, and he believes its actions have been intentional to cause him distress. Mr X says this has made him feel suicidal. He wants the Council to delete the relevant records.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact 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 or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6))

3. 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)

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How I considered this complaint

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X received the Council’s response to a request for his data in March 2021. He found comments within the records which were distressing to him, and he asked the Council to delete these records. It said it would not do so, explaining it needed to keep records of delivery of a statutory service. It acknowledged some records could have been worded more sensitively, and it apologised and added annotations to those records. It also worked with Mr X to add annotations to records he did not agree were accurate. It restricted records so that only certain members of staff could access them and sent a reminder to its staff about wording case records sensitively. The Council then signposted Mr X to the Information Commissioner’s Office and the Ombudsman because he was not satisfied with the action it had taken.
7. We normally expect someone to refer the matter to the Information Commissioner (ICO) if they have a complaint about data protection. Mr X’s request was made under the General Data Protection Regulation (GDPR), and as such he rightly contacted the ICO to escalate this. The ICO is the best body to consider how the Council responded to Mr X’s request, and whether its actions were sufficient. The ICO is best placed to consider the central issues in this case.
8. There are, however, elements of Mr X’s complaint the ICO may not be able to resolve. His complaint ultimately arises from peripheral issues of disagreement between him and the Council about his welfare and his needs, resulting from the Council’s general involvement with him. I have considered whether there is anything we can, and should, investigate outside of the ICO’s remit.
9. It is not unusual for people receiving services to disagree with councils’ opinions on their wellbeing and their needs. However, just because a person may disagree with what is written about them, this does not mean records are wrong and should be deleted. There is insufficient evidence the Council acted with fault, and the information I have seen indicates the Council did not intend to cause Mr X distress. It has taken steps to clarify its records where appropriate and to ensure records are worded more sensitively in future.
10. We could not recommend the Council deletes records, because the ICO would be best placed to recommend such action if it were appropriate in line with the GDPR. In any event, we would be critical of a council if it deleted social care records without sound reasoning. We could not achieve anything further of value for Mr X, and so we should not investigate this complaint.

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Final decision

11. We will not investigate Mr X’s complaint because the Information Commissioner’s Office is best placed to consider complaints about requests for data to be erased under the General Data Protection Regulation. We could not achieve anything more of value to Mr X, in addition to the steps the Council has already taken and any action the Information Commissioner’s Office may also ask it to take.

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Investigator's decision on behalf of the Ombudsman