Summary: We will not investigate Mr X’s complaint about the Council’s use of a photo of his children without his permission. This is because this is a complaint about a data matter which is best considered and decided by the Information Commissioner’s Office.

The complaint

1. Mr X complains the Council used a photo of his children in its communications without his knowledge or consent.

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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 do not start or continue 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))
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 to the Council that it had been using a photo of his children in its communications without his consent. Mr X said he consented to the photo being taken during an event but did not provide consent for it to be used in the way it was.
8. The Council removed the image and investigated. It said that due to the passage of time since the photo was taken it was unable to confirm what was agreed in terms of consent. It was also unable to locate a copy of signed consent for the photo to be used for anything other than the event they attended. It apologised to Mr X for this. The Council signposted Mr X to the Information Commissioner’s Office in its final response if he remained dissatisfied.
9. We will not investigate Mr X’s complaint. This is because, as per the Council’s signposting, this is a matter best considered and decided by the Information Commissioner’s Office which is the body set up to consider complaints about data matters such as this. We will not also consider it.
10. Mr X also seeks compensation from the Council for the benefit of his children. This was not raised in his complaint to the Council. It is reasonable to expect Mr X to use his right to make a claim in the courts once the matter has been considered and decided by the Information Commissioner. We cannot award damages in the way Mr X seeks.

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Final decision

11. We will not investigate Mr X’s complaint because it is about a data matter the Information Commissioner’s Office is best placed to consider and decide.

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Investigator's decision on behalf of the Ombudsman