Summary: We will not investigate this complaint about matters related to a fixed penalty notice issued to the complainant. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. It is reasonable to expect the complainant to have contested the penalty in court, the Information Commissioner’s Office is better placed to consider complaints about data handling and information requests, and we will not investigate the Council’s complaints process in isolation.

The complaint

1. The complainant, whom I refer to as Mr X, says (in summary) the Council:
• should not have issued him with a fixed penalty notice (FPN) for fly-tipping,
• committed a data breach by discussing the situation with a relative, and has failed to provide evidence when requested,
• failed to adequately respond to his associated complaint.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We may decide not to start an investigation if we think the issues could reasonably have been raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
4. The law also says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. The Information Commissioner's Office (ICO) 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.
6. We also 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)
7. And it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

8. I considered information provided by Mr X, and our Assessment Code.

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My assessment

9. With regard to the alleged fly-tipping, Councils can issue FPNs for waste offences. If the person pays the fine the Council closes the case and liability for the offence is discharged. If the person does not pay, the Council can prosecute. The person can raise a defence in court and the magistrates decide if they committed an offence.
10. Mr X paid the FPN for £400. If he disagreed with the fine, he could have refused to pay it and raised a defence in court. The Court would have decided if Mr X had committed the offence. It seems reasonable to expect Mr X to have followed this prescribed mechanism to defend a prosecution for an FPN. We do not act as an appeal body, or alternative to the courts, and cannot decide if an offence has been committed. By paying the fine Mr X discharged his liability and we have no powers to revoke the fine.
11. The ICO is also best placed to deal with Mr X’s concerns about data protection issues and how the Council dealt with his request for information. The ICO is the UK’s independent authority set up to uphold information rights. There is no charge for making a complaint to the ICO, and its complaints procedure is relatively easy to use. Where someone has a complaint about data protection or freedom of information, the Ombudsman usually expects them to bring the matter to the attention of the ICO. This is because the ICO is in a better position than the Ombudsman to consider such complaints.
12. As we will not pursue the main parts of Mr X’s complaint about the FPN, data breaches and information requests, we will not investigate his associated concerns about the Council’s complaint process.

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Final decision

13. We will not investigate Mr X’s complaint because:
• it is reasonable to expect him to have raised a defence in court if he wanted to challenge the FPN,
• the ICO is the appropriate body to deal with his concerns about data protection and how the Council dealt with his request for information, and,
• we will not pursue his concerns about the Council’s complaints process in isolation

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Investigator's decision on behalf of the Ombudsman