Summary: We will not investigate Mr X’s complaint about an officer’s actions whilst issuing him a Fixed Penalty Notice for spitting. This is because Mr X could have raised a defence against the issuing of the notice in court if he considered there was fault in the way it was issued. We will not investigate Mr X’s complaint about the Council’s response to his subject access request because it is a data matter the Information Commissioner’s Office is best placed to consider and decide.

The complaint

1. The complainant, Mr X, complains about an enforcement officer’s actions whilst issuing him a Fixed Penalty Notice (FPN) for spitting. Mr X says the officer was angry and threatening towards him. Mr X also complains about the Council’s response to his subject access request when he requested a copy of the officer’s bodycam footage.

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The Ombudsman’s role and powers

2. 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)
3. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
4. 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

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mr X complained about the actions of an enforcement officer whilst he issued him a FPN for spitting, as set out above.
8. The Council told Mr X it considered the FPN had been correctly issued. It explained Mr X could either discharge his liability to prosecution by paying the FPN or he could raise a defence against the issuing of the FPN in court. It told Mr X it would not share the bodycam footage with him and explained its reasons.
9. Mr X told the Council he would pay the FPN rather than raising a defence in court.
10. We will not investigate Mr X’s complaint. This is because Mr X could have raised a defence against the matter in court if he considered there was fault in relation to the issuing of the FPN. We are not an appeal body and we cannot decide whether there was fault in the way in which the FPN was issued nor whether the alleged offence was committed or whether Mr X was liable. This was a matter for the courts to consider and decide and Mr X had the opportunity to challenge this rather than paying the FPN.
11. Mr X’s complaint about the Council’s response to his subject access request is a data matter which the Information Commissioner’s Office (ICO) is best placed to consider and decide. It is the body set up to consider complaints about data matters such as this.

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Final decision

12. We will not investigate Mr X’s complaint because it was reasonable to expect Mr X to have used his right to defend the matter in court if he believes there was fault in the way in which the FPN was issued. The court would have been able to reach a view on the issues raised. The data matter is best considered and decided by the ICO rather than this office.

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Investigator's decision on behalf of the Ombudsman