17.1. Guiding principles

The Information Sharing and Handling Manual provides detailed guidance about sharing information with complainants, BinJs and others.

They key principles are:

• Ensure you have consent to share
• Do not share information from or about third parties
• Do not share personal data the complainant is not entitled to see 
• Do not share information that could put individuals at risk of harm
• Make your enquiries to a BinJ focused and specific 
• Delete irrelevant/ duplicate information 
• Do not accept embedded documents 
• Record reasons for sharing information 
• Clearly mark information that cannot be disclosed and move any unredacted version to the Do Not Disclose folder

Investigators should consult the Information Sharing and Handling Manual to understand their responsibilities around sharing, obtaining and recording casework information in general.

In most cases, our decision statement (whether draft or final) will be sufficient in setting out what we have considered in reaching our decision. Our starting point is that we do not routinely share information.

We are under no obligation to share all records relating to a complaint but we should consider in complex cases proactively sharing specific evidence at draft stage to help the complainant and/or BinJ understand how we reached our decision.

If either party asks to see copies of specific information we have relied on to reach our decision, we should share this (subject to the rules about what can and cannot be disclosed). This does not apply to documents they have provided to us or that we know they already have. Investigators should not invite a PA/REP to make a SAR when they are asking for information we have relied on in making our decision.

Where we do share documents, we need to ensure we redact third party information, unless it is already known to the recipient or in the public domain. If significant redactions are required, we may provide a summary of a document instead.

If one party asks for information before we have sent a draft decision, we would normally refuse this because:

• we often do not use every piece of evidence in forming a decision;
• some documents will contain irrelevant or third-party information and
• it can lead to delays in the investigation if information is shared before we have reached a draft decision.

There is a standard paragraph to explain why this is.

Nothing in this section overrides our legal obligations under the GDPR, Data Protection Act or Freedom of Information Act.

17.2. Section 32(3) notices

Our Manual for Councils explains to link officers the purpose of a s32(3) notice and the circumstances in which it might consider serving one. See also the Local Government Act 1974.

BinJs (other than adult social care providers under Part 3A) may serve notice under s32(3) of the LGA 1974 which, if valid, may prevent us sharing the specified document or information. This is a statutory process which pre-dates modern data protection laws (such as GDPR). For example, a BinJ does not need to serve a s32(3) notice to prevent the disclosure of personal data about an employee or third party because current data protection legislation prevents us disclosing it anyway.

Investigators should record any notices served in ECHO and inform their manager. We should not normally invite the serving of a notice.

By law, s32(3) notices cannot be served electronically. If Investigators receive an electronic s32(3) notice, they should contact the BinJ and ask it to re-serve it through the post, using the Coventry PO Box address. While we do not have a valid notice, as the BinJ clearly intends that any documents or information named in a s32(3) notice should be treated as confidential, we should not share them with a complainant, representative or third party while waiting for a notice which complies with the law.

If an Investigator is concerned about a s32(3) notice they should query it with the BinJ in the first instance. If the BinJ maintains its position, and the Investigator is still not satisfied, they should raise the matter with their manager. If necessary, we can apply to the Secretary of State to discharge a s32(3) notice.

17.3.  What to do when complainants tell us they intend sharing information with others

We tell complainants that the law says we must investigate in private and that they should not discuss or share information we send about the case, including our draft decision with the press or through social media. Sometimes, despite this, complainants tell us they intend to share information we have provided as part of our enquiries, or we may become aware they have already done so, for example by sharing our draft decision on social media.

Section 32 (2) of the LGA 1974 says information should only be disclosed for the purposes of our report or decision statement. The courts have previously confirmed this bar applies to recipients of information from the Ombudsman, as well as the Ombudsman himself. R (Kay) v Health Service Commissioner [2008] EWHC 2063 (Admin) considered this in relation to the PHSO. Sections 59-60 of that decision confirm the complainant has to maintain confidentiality.

The judge in that case found that “information disclosed to the ombudsman in the course of or the purpose of the litigation shall not be disclosed except for the purposes of the investigation and any report to be made in respect of it. In my judgment that applies to those receiving the information from the Commission [PHSO] itself… It would be an absurd position if the ombudsman was restricted as to the situations in which she could disclose the material, only for the material to be used by others for reasons outside the ambit of the ombudsman’s investigation and report.”

Where complainants say, despite this advice, they intend to share information, or we find they have done so, we should remind them of this restriction and ask them to comply, advising them of potential risks, (including when relevant to them being at risk from libel action by a third party). We can decide to require specific undertakings before we share further information or documents. Advice should be sought in such circumstances from an Assistant Ombudsman.

Nothing in this section prevents a complainant from speaking to the press after we have issued a final decision (or report). We should advise them it is best to wait until the decision is published on our website, as that only happens once the time allowed for any challenges has passed. And while it is their choice to speak to the press and waive their own anonymity, they still must not share any information or documents we sent to them as part of our investigation.