The Ombudsman's final decision:
Summary: Mr X complained the Council failed to follow its own policies and procedures when dealing with his request for CCTV footage of a collision between his vehicle and a third party. There is fault and the Council has agreed to provide Mr X a payment of £250 to remedy the injustice caused.
- The complainant, Mr X, complains the Council failed to follow its own policies and procedures when dealing with his request for CCTV footage of a collision between his vehicle and a third party.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I considered the information provided by Mr X including the Council’s responses to his complaints.
- Mr X and the Council were given the opportunity to comment on a draft of this decision. I have considered the comments received from Mr X and the Council.
What I found
- The Council’s Code of Practice in respect of the operation of CCTV within its district says one of the objectives of the system is to assist in supporting civil proceedings which will help detect crime.
- The Code of Practice says that all recorded material will be processed and handled strictly in accordance with the Code of Practice and the Procedural Manual.
- The Code of Practice also says the following:
- Every request for the release of personal data generated by this CCTV System will be channelled through the System Manager. The System Manager will ensure the principles contained within Appendix C to this Code of Practice are followed at all times;
- Recorded material shall be processed lawfully and fairly, and used only for the purposes defined in this Code of Practice;
- Recorded tapes will be retained for a period of one calendar month;
- Upon receipt from a third party of a bona fide request for the release of data, the data controller shall:
i) Not unduly obstruct a third party investigation to verify the existence of relevant data.
ii) Ensure the retention of data which may be relevant to a request, but which may be pending application for, or the issue of, a court order or subpoena. A time limit shall be imposed on such retention, which will be notified at the time of the request.
- On 7 March 2017, Mr X was sitting in his car when a van drove past and damaged his vehicle. The driver of the van, Mr Y, used threatening language towards Mr X and drove away without providing Mr X with his details.
- Mr X reported the matter to the Police and also his insurance company. The Police provided Mr X with an incident number. Mr X’s insurance company contacted Mr Y’s insurers who denied any involvement.
- Mr X contacted the Council on 8 March 2017 by telephone and email. He informed the Council he was aware he would need to submit a subject access request (SAR) to obtain the footage but he would like the Council to confirm it had the footage before he submitted the SAR. Mr X informed the Council he needed the footage to provide to the Police. The Council informed Mr X on 9 March 2017 it did have footage of the incident but was only able to obtain partial registration of the perpetrator’s vehicle.
- Mr X’s insurance company contacted the Council on 13 March 2017 and asked it to confirm if it had the CCTV footage of the incident. It requested the Council to retain the footage if it had. The insurance company did not receive a response from the Council so it sent the email again on 21 April 2017.
- The Council responded to the insurance company on 2 May 2017 and informed it that the collision was not caught on camera. The insurance company made a decision that they could not establish liability due to lack of evidence.
- Mr X was frustrated to hear the Council had informed him it had footage of the incident but it informed his insurance company that it did not. The insurance company contacted the Council again and asked it to confirm its position based on the conflicting information Mr X had received from the Council. Mr X also contacted the Council to confirm if it had the footage.
- The Council informed the insurance company that it recalled speaking with Mr X and had advised him to contact his insurance company to submit a request for the footage. The Council said this request did not reach it until 21 April 2017 at which time the footage was no longer available as recordings are only retained for 31 days. The Council also said it recalled the registration of the vehicle concerned could not be seen in the footage but it was happy to provide a statement to the insurance company if it would assist matters.
- On 5 June 2017, the insurance company took the Council up on its offer and sent it a witness questionnaire to complete.
- The insurance company chased the Council for the witness questionnaire on 26 June 2017 and again on 19 July 2017. The Council failed to respond.
- The insurance company did not have enough evidence to establish liability so it abandoned Mr X’s claim. Consequently, Mr X lost his 6 years no-claim bonus, had to pay a higher premium and paid a policy excess of £250 for the repairs to his car.
- In October 2017, Mr X submitted a SAR to the Council and his insurance company based on the inconsistent information he had received from the Council and his insurance company. He requested all documentation they had in relation to the incident on 7 March 2017. The Council provided the information to Mr X in November 2017.
- The information contained a review of the footage which contained the following statement, ‘10:15:22 cam 191 (impact)’.
- After reviewing the information Mr X received from his insurance company and the Council, Mr X complained to the Council in December 2017. Mr X highlighted that his insurance company had requested the footage during the 31 day retention period and the Council had incorrectly stated it had not received the request until after this period.
- Mr X complained the Council had not followed its CCTV Code of Practice. He was unhappy the Council had the footage of the impact and instead of providing it to his insurance company to establish third party liability, it deleted it. Mr X requested the Council complete the witness questionnaire form the insurance company had provided.
- The Council sent its stage 1 reply to Mr X in January 2018. It did not uphold Mr X’s complaint that it had not complied with its CCTV Code of Practice. The Council said that the SAR was received after the 31 day retention period therefore there was no data to share with the insurance company. The Council said that although it was aware of his previous request for the information this did not in itself mean that the data should be marked for extended retention for a future potential SAR.
- The Council also did not uphold Mr X’s complaint about its failure to respond to the insurance company’s SAR. The Council said it found that it had responded in an efficient and helpful way in response to the correspondence from Mr X and his insurance company.
- The Council also said the images referred to in its review of the footage did not show the impact as it occurred ‘off-camera’. It said that ‘while it may be possible to infer the sequence of events between the two images which were captured it would not be possible to definitively provide evidence sufficient for civil litigation proceedings’. The Council said it would not provide a witness statement as the Council Officer who reviewed the footage before its deletion could not fully recollect the incident.
- The Council ‘partially upheld’ Mr X’s complaint about the Council’s provision of information to Mr X’s insurance company. The Council said that when it received the subsequent request for the footage from Mr X’s insurance company, it failed to communicate to them and Mr X that it no longer had the footage. The Council apologised for this. It also made the following service improvement:
‘The CCTV Manager and CCTV Team Leaders who are responsible for reviewing images which are subject to SARs must formally write to people confirming when the Council does not have images which support the SAR subject matter rather than simply not responding.’
- Mr X did not agree with the Council’s findings and in January 2018 he requested for his complaint to be escalated to stage 2 of the complaints process. Mr X disputed the Council’s finding that the request for the footage was received after the 31 day retention period. Mr X was unhappy the Council decided the footage and information it had would not be enough to establish third-party guilt. He said the Council should have provided the footage and witness statement and it would be up to the insurance company to decide if it was enough to establish third-party guilt. Mr X was unhappy the Council did not honour its offer of a witness statement and that it failed to respond to the insurance company.
- The Council responded to Mr X’s stage 2 complaint in May 2018. It apologised for the delay in responding. The Council said it did not believe there had been any breach in relation to its responsibilities in this case. It said that whilst it was regrettable that it did not keep the footage, there was no legal obligation to do so. However, it had made a further service improvement of taking copies of any incidents when they are requested so that they are not affected by its routine data storage management.
- The Council acknowledged Mr X had been inconvenienced and that ‘it would have been preferable to keep a copy of the incident’. It said this failure to do so was an oversight. As a gesture of goodwill the Council offered Mr X £100.
- The Council said that although Mr X requested the CCTV footage before the 31 day retention period, his SAR was received after this time had elapsed. Therefore, when the request was received there was no data to share. Mr X contacted the Council on 8 March 2017, one day after the footage was recorded. In his correspondence he made the Council aware that he would be submitting a SAR for the footage once it confirmed it had it. His insurance company submitted a request for the footage on 13 March 2017. The Council were aware the footage was required but instead of retaining it and providing it to the insurance company, it deleted it. This is fault.
- The Council advised Mr X to ask his insurance company to request the footage as it could not provide it to him due to Data Protection. It said it did not receive this request until 21 April 2017, after the 31 day retention period. This is incorrect as the Council received a request form the insurance company on 13 March 2017, within the 31 day time period, but the Council failed to respond and the footage was subsequently deleted. This is fault.
- After deleting the footage, the Council offered to provide a statement to the insurance company to assist Mr X’s claim. The insurance company took the Council up on its offer and sent a witness questionnaire to the Council on two occasions. The Council failed to respond on both occasions. I consider this fault.
- Mr X and his insurance company have received conflicting information regarding what the footage showed. When reviewing the CCTV footage on 9 March 2017, the Council’s internal email refers to a time, camera number and ‘impact’ which suggests the footage was caught on camera. However, the Council has denied in correspondence to Mr X that it had any footage of the impact and it only had footage of events ‘immediately preceding and subsequent events’. We cannot establish what the footage showed and we cannot say what the outcome would have been had the footage been provided to the insurance company. However, the Council has acknowledged it would have been preferable to retain the footage and its failure to do this was an oversight.
- Mr X has unnecessarily been put to a significant amount of time and trouble in corresponding with the Council and insurance company over a 15 month period. The Council has offered Mr X £100 as a gesture of goodwill but I do not consider this adequately remedies the injustice to him.
- To remedy the injustice to Mr X, specifically the time and trouble he spent pursuing the complaint and the frustration he experienced, within 4 weeks of my final decision the Council has agreed to pay Mr X £250.
- There is fault and the Council has agreed to remedy the injustice caused to Mr X. Therefore, I have completed my investigation and closed this complaint.
Investigator's decision on behalf of the Ombudsman