Summary: We will not investigate Mr X’s complaint about the Council’s failure to disclose information in response to a subject access request. This is because we cannot achieve the outcome he wants, and it is reasonable for him to take court action to enforce his data protection rights.

The complaint

1. Mr X complained the Council failed to disclose all relevant information within relevant statutory timeframes in relation to two subject access requests. He said the failure had caused a significant impact on his mental health and wellbeing. He wants us to require the Council to disclose the information to him and to acknowledge its failings.

Back to top

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. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
4. We investigate 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 continue an investigation if we decide:

• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

Back to top

How I considered this complaint

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

Back to top

My assessment

What happened

7. Mr X has made a number of subject access requests, in which he asked the Council to disclose all data it holds about him for specific time periods. In relation to one specific requests, he complained the Council had neither told him it needed an extension to the statutory time limit of one month, nor disclosed the information. In relation to another request, it had said it needed extra time but had not provided a phased disclosure in line with data protection regulations.
8. On 2 June, the Council wrote to apologise for its delay in responding to one of the requests. It said the delay was due to a high demand. Mr X told us its apology was inadequate.
9. Mr X told us he complained to the Information Commissioner’s Office (ICO), which upheld his complaint and advised him to complain to us for enforcement action.
10. On 16 June, the Council wrote to refuse to disclose the information Mr X asked for because it said the requests were excessive and overlapping in nature and were intended to cause disruption. It said Mr X could only make one subject access request in any six month period in future. It explained Mr X could complain to the ICO if he was unhappy with its decision. I do not know whether he has done so.

My assessment

11. We usually say the ICO is better placed to consider complaints about data protection. It would be appropriate for Mr X to refer any concerns about the Council’s refusal to disclose the data and its restriction on the number of requests he can made to the ICO if he is unhappy with the Council’s decision.
12. I note Mr X has already made complaints to the ICO about the two specific requests he has complained to us about and now wants us to require the Council to disclose the information he asked for.
13. We cannot direct an organisation to take action; we can only recommend that it does so. In most cases, councils do accept our recommendations and agree to take the action we have suggested. In this case, the Council has refused to disclose the information. Further, even if we asked the Council to disclose the information and it agreed to do so, we would not be in a position to assess whether all relevant information has, in fact, been disclosed and it would not be an appropriate use of our resources to get involved in any dispute about this. For these reasons, we could not achieve the outcome Mr X wants.
14. Mr X has the right to take legal action in the country court in relation to data protection breaches. Potentially the court could enforce his rights under data protection law and award compensation for any distress suffered. Although I note Mr X says he does not have the financial resources to take court action, he could seek support from a local advice centre to make the application. Regardless of his financial position and the time and risks involved in court action, I consider it is reasonable for him to take court action because only the court could provide the outcome he wants.

Back to top

Final decision

15. We will not investigate Mr X’s complaint because we cannot achieve the outcome he wants and because it is reasonable for him to take court action to enforce his data protection rights.

Back to top

Investigator's decision on behalf of the Ombudsman