Our website gives details of our petition PE 1538
PUBLIC PETITION NO. PE01538 Transparency in SPSO investigations

A separate link takes you to the verbatim account of its discussion by the Public Petitions Committee (Petition PE1538 -SPSO transparency. Verbatim account). The outcome was most satisfactory – approval of the petition and (not requested in the petition itself) a recommendation that the SPSO’s service be investigated.

You can read here about its fate in the hands of Local Government & Regeneration Committee – a fascinating insight into the working of Parliament.

Either –
Search for “local government and regeneration committee”
On left, click on “Completed business”, then on “Petitions (closed)”. Look down the petitions to PE01538.
Or else go straight to:
http://www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/86481.aspx#sthash.1jVz2vzr.dpuf

This what you find:

PE01538: Transparency in SPSO investigations
Lodged 15 October 2014
Closed 14 January 2015
On 25 November 2014 the Public Petitions Committee referred petition PE1538 to the Local Government and Regeneration Committee.
At its meeting on the 10 December 2014 the Committee agreed to consider the petition as part of its scrutiny of the 2013/14 SPSO annual report at its meeting on 7 January 2015 and in preparation for that meeting to invite the SPSO to submit to the Committee written comment on the petition by 18 December 2014.
• 2011218 SPSO Response to Petition PE1538 (171KB pdf)
The letter from the SPSO was sent to the Petitioners for comment, their response can be seen below.
• 20150104 - Letter from Petitioner to Committee regarding SPSO response (230KB pdf)
The Public Petitions Committee wrote to the Scottish Government regarding the Petition. Read the Scottish Governments response here:
• 20141209 Scottish Government Letter to the Public Petitions Committee (110KB pdf)
Letter from the Clerks to the peitioner on the closing of the petition - 19 January 2015:
• Letter to the peititioner (113KB pdf)

The above documents are reproduced below, but first read the following two emails that Accountability Scotland  sent to the LGR Committee before the meetings. It sheds interesting light on the running of the committee.

Email to the LG&R Committee   8th December 2014
We thank Paul Nicholson for notifying us of your meeting on Wednesday 10 December. Several points cause us serious concern.
1. It may or may not be implied that the one alternative to considering the petition on 7 January is to consider it on a separate occasion (which latter seems to us most appropriate), but this is not stated. What troubles us is the possibility of the whole matter being dropped without proper discussion.
2. The documents given to the Committee are just the agenda and the ‘Clerks Note LGR/S4/14/33/2’. The most important documentation is not even alluded to, namely our original petition, the verbatim report of the meeting of the Public Petitions Committee and their decisions and recommendations. Instead, there is the lengthy Clerk’s Note, which is almost entirely the same as the SPICe briefing for the Petitions Committee, with added numbering of paragraphs. This says nothing of the case we presented. Most seriously, it includes a gross misrepresentation of the SPSO Act (2002) that originated in the SPSO office and which we pointed out to the Petitions Committee.  In short, the Clerk’s Note says little that is very relevant and correct concerning our very focused petition and the more wide-ranging discussion. Anyone reading the Note could well start off with a bias against taking our petition seriously.
It is possible that we misjudge the situation , for we base our comments only on what we have been sent and on what is on your website.
We believe that it would help both us and yourselves if we were to have the opportunity of addressing your committee and, if necessary, rebutting any responses of the SPSO. We would be happy to give oral evidence to the committee rather than taking up the Clerk’s time.
I end by quoting Mr. Chic Brodie and then the final words of the Convenor of the Public Petitions Committee.
Chic Brodie: [Secondly,] it is time that we had a review of the SPSO’s service. If we seek openness and transparency and if we recognise the need for public participation in all aspects of our life, there should be no hint of closed information, subject to maintaining the confidentiality of the individuals involved.
Convenor: “...we are keen to ensure that your petition is looked at seriously, so we will refer it to the Local Government and Regeneration Committee and ask the Scottish Government for its views. All the evidence that we have taken today and in written form will go to our colleagues on that committee. The next step will probably be for the clerk to the Local Government and Regeneration Committee to keep you up to date with developments.”
Yours sincerely,  Richard Burton,  Secretary, Accountability Scotland

Email to the LG&R Committee    (9/12/2014)
 
In an earlier note to the Committee we pointed out that the documents given to the Committee by the Clerk are just the agenda and the ‘Clerks Note LGR/S4/14/33/2’, with the most important documentation not even alluded to. We will not repeat here our more detailed comments on the deficiencies of the documentation, but wish to emphasize more the conclusions and recommendations of the Public Petitions Committee as to the next steps—on which there appeared to be total agreement, and with which we are entirely happy. None of these were passed on to you.
To quote the Convenor: “we are keen to ensure that your petition is looked at seriously, so we will refer it to the Local Government and Regeneration Committee and ask the Scottish Government for its views. All the evidence that we have taken today and in written form will go to our colleagues on that committee.”
Quoting Chic Brodie: “It is time that we had a review of the SPSO’s service.“

For your convenience, I reproduce below the relevant part of the verbatim record of the meeting.
A separate point needs comment from us. Mr. Stewart-Blacker was asked for evidence for ‘serious accusations’ regarding misleading evidence provided by public bodies. He provided a clear and simple example of his own. Subsequent to the meeting of the Petitions Committee a professor sent them a particularly powerful example. Our membership could provide more examples if required.
Richard Burton,  Secretary, Accountability Scotland

Quoting from the verbatim record on the next steps
The Convener: 
As my colleagues have no further questions, we now come to the summation and looking at next steps. Mr Stewart-Blacker indicated that he would favour the petition being referred to the Local Government and Regeneration Committee. I suggest that we refer the petition, with all the evidence that we have taken, to our colleagues on that committee, which has a yearly responsibility in relation to the SPSO. Do colleagues agree?
Chic Brodie: 
We should write to the Local Government and Regeneration Committee. I have two concerns. First, I just asked Mr Stewart-Blacker about the serious accusation in his petition. It appears that we do not have a sufficient evidence base. Of course, that will happen if, as with the Judicial Complaints Reviewer situation, we do not have openness and transparency.
Secondly, it is time that we had a review of the SPSO’s service. If we seek openness and transparency and if we recognise the need for public participation in all aspects of our life, there should be no hint of closed information, subject to maintaining the confidentiality of the individuals involved.
David Torrance (Kirkcaldy) (SNP): 
I am happy for the petition to go to the Local Government and Regeneration Committee.
Angus MacDonald: 
There is a lot of merit in Chic Brodie’s point about a service review. I am not quite sure how we would go about requesting that. Perhaps we need to indicate to the Scottish Government that that might be a good idea.
If we are speaking to the Government, we should also highlight the petitioner’s comment about making a brief amendment to the 2002 act to the effect that complainants should be allowed to see all exchanges between the SPSO and the bodies complained about, albeit that they might be redacted.
The Convener: 
That is a good point. It is perfectly competent for us to refer the petition to the Local Government and Regeneration Committee and, at the same time, to write to the Scottish Government with the comments made by Angus MacDonald and Chic Brodie. Is that agreed?
Members indicated agreement.
Angus MacDonald: 
I think that that is the way forward.
The Convener: 
As you will have picked up, Mr Stewart-Blacker, we are keen to ensure that your petition is looked at seriously, so we will refer it to the Local Government and Regeneration Committee and ask the Scottish Government for its views. All the evidence that we have taken today and in written form will go to our colleagues on that committee. The next step will probably be for the clerk to the Local Government and Regeneration Committee to keep you up to date with developments.
 

SPSO Response to Petition PE1538
 18 December 2014
Kevin Stewart MSP
Convener of the Local Government and Regeneration Committee
The Scottish Parliament
EDINBURGH
EH99 1SP
Dear Convener,
Petition 1538
Thank you for the Committee’s letter of 9 December 2014 asking us to comment on the petition.
The petition asks the Committee to ask the Scottish Government to alter our legislation to include new requirements about the sharing of documents. I have attached a note to this letter which includes detailed information about the current position.
When the current legislation, the Scottish Public Services Ombudsman Act 2002, was introduced in the first session of the Scottish Parliament, the policy memorandum to the Bill noted that the guarantee of confidentiality helps to ensure that any authority or person from whom the Ombudsman seeks evidence will give it fully and freely, in the knowledge that it will be only be used for the Ombudsman’s investigation. Attention was also drawn to the fact that information is already available, or subject to restrictions on disclosure, through other legislation and it would not be appropriate for a complaint to the Ombudsman to be used to circumvent another statutory provision.
Having considered all relevant matters, Parliament decided that the legislation struck an appropriate balance between the need to ensure fairness in decision-making and to protect potentially very sensitive information. It may also be helpful to note that, in the event that the Parliament decided to change the protections and safeguards in the legislation, there would be practical, resource implications for our office.
Yours sincerely
Jim Martin
Ombudsman

Annex A Note on information sharing and the Scottish Public Services Ombudsman
Our ability to access information.
We have very broad legislative powers to require the production of information and that information is subject to very broad legislative protection.
We have the same powers of the Court of Session to request evidence under section 13 of the Scottish Public Services Ombudsman Act 2002 (“the 2002 Act”). However, it is worth noting that documents that could be withheld from a court because of official secrecy, or that the UK or Scottish Government could withhold from the courts because of a legal privilege they may have, do not apply to SPSO. This means, in some cases, that we can access information that would not be available to a court. Comments to us are protected by absolute privilege by the 2002 Act, which means they are not subject to the laws of defamation.
Requirements on us to share information
There are legal requirements in place which mean that we must share information for comment prior to making a decision in a particular case and that a decision must include all the information we have relied upon. These requirements are not legislative, but established by common law rules of natural justice.
We also are subject to the Data Protection and Freedom of Information regimes. The natural justice requirements directly impact on the investigation so I will deal with those first.
Natural Justice
As an organisation subject to judicial review and the supervision of the courts, we need to comply with common law rules of natural justice. This requires us to ensure that parties have the chance to comment on material evidence before we make a final decision. We also need to ensure that our decision includes the evidence used and explains how that evidence has been used – so the evidence we use will be in our decisions and available for comment.
Our lawyers have assessed our general approach to the release of information and they have agreed that we are acting in a way compatible with the rules of natural justice.
Given the extent of the information we can access, section 19 of our legislation limits what we release. We need to be able to demonstrate any information we release for comment during an investigation – which are the points the petitioners are making are necessary for the purposes of that investigation. This means we cannot simply release information because we hold it. Equally, we do have to release information if we intend to use it.
When deciding what to release for comment prior to making a decision, we take into account:
whether this evidence is already known and commented upon previously;
whether the evidence is new and will be important for the decision;
when we release information, we focus the attention of parties on any new and critical information by being very clear what we are asking them to comment on. This also ensures we are acting within the powers that we have; and
the new information goes beyond documents we get from the organisation and complainant and may include information we may have about legislation, policy etc that appear not to have been considered.
3

Under section 19 of our legislation we can, and at times do, release information that would not have been available to the individual under the Data Protection Act 1998 (DPA) or the Freedom of Information (Scotland) Act 2002 (FOISA).
We have a power to release information for the purposes of an investigation, which means we could release information that we are using in reaching a decision, but which the individual who made the complaint would not otherwise be able to access. For example:
• Access to social work records after a person has died is very limited – we have taken a complaint from a nephew who wanted to complain about a discharge of his Aunt who had died. The Council could not release social work records to him. We accessed those records and he was given the opportunity to comment on those parts which were included in the decision.

• An advocate complained on behalf of a women with learning difficulties who had died in hospital. There was no family to consent to the release of clinical records. We accepted and investigated this complaint.

• At times, we will include some sections of legal advice obtained by organisations which they have been happy to provide us with in response to a complaint.

Some categories of information we hold that would not necessarily be releasable under DPA or FOISA, subject to the application of legal tests in those Acts.
• Information relating to someone who has died – in some cases relatives can access this, but that is not always the case (such a disclosure would not be made under FOI or DPA).
• Confidential information about legal advice that qualifies for legal professional privilege obtained from an organisation.
• Information provided in confidence where disclosure would be an actionable breach of confidence (information protected by the Scots common law of confidence)
• Information that would not normally be released by the Scottish or UK governments even to a court
• Information provided in confidence to a Prison Disciplinary Committee
• Information (including health or social services information) where disclosure could result in harm or other detriment
• Information relating to third parties available on file this may be:
o Information about people who have raised neighbour concerns in a complaint relating to anti-social behaviour
o Information about the contact between a planning authority and a company/person in a complaint about enforcement, sometimes this relates to very sensitive financial data.

As we have said above, if we consider it is necessary to release such information to comply with the rules of natural justice, we can do so. However a blanket obligation to share all of this would mean someone would be able to access information they would not be entitled to under DPA or FOISA (and that might be specifically protected under the DPA) and which they do not need to see, given that we are not using it to make a decision on the complaint
It could be argued that the 2002 Act could be changed to limit what information we could access, so that we would only access information that should be accessible to the 4

complainant. However, that would not improve the quality of our investigations and would limit the complaints we could look at. It would arguably shift the balance of our investigations in favour of the organisations.
Our obligations under the Data Protection legislation.
An individual can make a subject access request to us under the DPA. In these circumstances, our practice is to release what we can to complainants about their complaint unless there are valid reasons not to. This may include information not released as part of the investigation but which contains personal data. However, it is worth noting that, if that is the case, none of this additional information will have been relied upon in the decision. On this point, it may also be worth noting that the court process would not accept documents in their process which do not relate to the arguments being made.
It should be noted that the DPA contains a specific exemption at section 31 (Regulatory Activity) which provides that personal data being processed by the Scottish Public Services Ombudsman for the purpose of discharging the functions conferred upon the Ombudsman by the 2002 Act are exempt from the ‘subject information provisions’ in the DPA (which include the right to request personal data under the DPA), to the extent that the application of those provisions would be likely to prejudice the proper discharge of the Ombudsman’s functions. Corresponding provisions in relation to the Parliamentary Commissioner for Administration, the Commission for Local Administration in England, the Health Service Commissioner for England, the Public Services Ombudsman for Wales, the Assembly Ombudsman for Northern Ireland and the Northern Ireland Complaints Commissioner are also included in the exemption for Regulatory Activity in section 31 of the DPA.
It is important that a right to access information is separate from the information we are relying on and using in the investigation. This means we can correctly manage the information we hold. There will be some circumstances where we have released information in a decision letter or report which we could not release in relation to a subject access request. That information may be part of a larger bundle of information and we need to be sure we do not release anything additional in error.
 

 Commentary from Accountability Scotland on Jim Martin’s letter to the LGR Committee concerning PE01538
As well as agreeing to refer the petition to the LGR Committee and to ask the Scottish Government for its views, the Public Petitions Committee noted that it is time for a review of the SPSO’s service. Although the latter point is not the topic of Mr. Martin’s letter, we wish to emphasize it here because there has never been an investigation of the adequacy and effectiveness of the SPSO’s decisions and available evidence indicates that the SPSO’s satisfaction rates have been amongst the worst in the world. We would like to come back to the committee on this when we have had time to analyse new data and its implications.
A striking aspect of Mr. Martin’s lengthy document is that it does not directly address key points made in the petition:
1. the apparent confusion and lack of consistency within the SPSO office in regard to this issue—as illustrated in PE01538.
2. the seriously misleading information given by the SPSO to a complainant concerning section 19 of the Act (and perpetuated in the SPICe and LGR briefings).
3. the important point, for which the LGR Committee has been given proof, is that the SPSO can present a complainant’s case incorrectly and that the body complained of can give false or incomplete information. The complainant is well placed to spot such deficiencies. Of course there can be special circumstances, as described by Jim Martin, where documents may need to be redacted or, more rarely, kept secret as the Act says.
4. the meaning of “in private”, as used in the Act.
5. the suggestion that transparency would improve public trust in the SPSO.
6. our contention that the SPSO would welcome clarification of this issue and the ability to investigate more effectively.
.
We do not dispute the correctness of most of what Mr Martin wrote, although some of it is vague and hard to understand fully. However, one point is seriously incorrect. He wrote:
“As an organisation subject to judicial review and the supervision of the courts, we need to comply with common law rules of natural justice.”
The SPSO is indeed subject to judicial review, but is not otherwise supervised by the courts in the normal sense of ‘supervised’. He is supervised only by the LGR Committee.
(Does the need to comply with common law rules of natural justice actually follow logically from the first part of his sentence?)
Mr Martin refers to the Data Protection Act (DPA) and to personal data. The latter, though more precisely defined in the Act, is recorded information from which it is possible to identify a living individual and includes information relating to racial or ethnic origin, political opinions, religious or other beliefs, trade union membership, health, sex life and criminal convictions. Note that the “Data Protection Act 1998
provides an individual who is the subject of personal data with a right of access to the data”.
Given this information, we are puzzled that the SPSO should often be reluctant to give complainants information about themselves.
In their book on “The Ombudsman Enterprise” (2011) Buck, Kirkham and Thompson imply support for the revealing of documents: “Freedom of information legislation also means that ombudsman investigations can potentially be opened up and the documents which were used to inform their investigations subject to wider scrutiny.”
===================================
Mr. Martin’s letter follows, with our annotations in italics.
Kevin Stewart MSP
Convener of the Local Government and Regeneration Committee
The Scottish Parliament
EDINBURGH
EH99 1SP
Dear Convener,
Petition 1538
Thank you for the Committee’s letter of 9 December 2014 asking us to comment on the petition.
The petition asks the Committee to ask the Scottish Government to alter our legislation to include new requirements about the sharing of documents. This is a simplification. Our contention is that the legislation already allows this, but needs to be clarified. I have attached a note to this letter which includes detailed information about the current position.
When the current legislation, the Scottish Public Services Ombudsman Act 2002, was introduced in the first session of the Scottish Parliament, the policy memorandum to the Bill noted that the guarantee of confidentiality helps to ensure that any authority or person from whom the Ombudsman seeks evidence will give it fully and freely, in the knowledge that it will be only be used for the Ombudsman’s investigation. Does ‘confidentiality’ refer to those intimately involved or to the general public? Attention was also drawn to the fact that information is already available, or subject to restrictions on disclosure, through other legislation (Vague) and it would not be appropriate for a complaint to the Ombudsman to be used to circumvent another statutory provision (such as?). If this refers to FOI, remember that responses can take weeks.
Having considered all relevant matters, Parliament decided that the legislation struck an appropriate balance between the need to ensure fairness in decision-making and to protect potentially very sensitive information. (Information can indeed be sensitive—as specified in the Act—but in most cases it is not, except inasmuch as wrongdoers may think it so from their point of view.) It may also be helpful to note that, in the event that the Parliament decided to change (or clarify) the protections and safeguards in the legislation, there would be practical, resource implications for our office (such as?).
Yours sincerely
Jim Martin
Ombudsman
Annex A Note on information sharing and the Scottish Public Services Ombudsman
Our ability to access information.
We have very broad legislative powers to require the production of information and that information is subject to very broad legislative protection (namely?).
We have the same powers of the Court of Session to request evidence under section 13 of the Scottish Public Services Ombudsman Act 2002 (“the 2002 Act”). However, it is worth noting that documents that could be withheld from a court because of official secrecy, or that the UK or Scottish Government could withhold from the courts because of a legal privilege they may have, do not apply to SPSO. This means, in some cases, that we can access information that would not be available to a court. Comments to us are protected by absolute privilege by the 2002 Act, which means they are not subject to the laws of defamation.
True enough, but this does not apply to most cases handled by the SPSO.
Requirements on us to share information
There are legal requirements in place which mean that we must share information for comment prior to making a decision in a particular case and that a decision must include all the information we have relied upon. These requirements are not legislative, but established by common law rules of natural justice.
An important issue here is the meaning of ‘information’. We contend that it should include actual documents, not mere assertions about their content. If such assertions are complete and accurate, why should the documents not be shared with the complainant?
We also are subject to the Data Protection and Freedom of Information regimes. The natural justice requirements directly impact on the investigation so I will deal with those first.
Natural Justice
As an organisation subject to judicial review and the supervision of the courts, (This could give the impression that the SPSO is in general supervised by the courts, rather than in the sole context of judicial review. Otherwise, the SPSO is supervised only by the LGRC. . Because of the high cost, practically no SPSO case is taken to judicial review.) we need to comply with common law rules of natural justice. This requires us to ensure that parties have the chance to comment on material evidence before we make a final decision. Yes, that is our point! We also need to ensure that our decision includes the evidence used and explains how that evidence has been used – so the evidence we use will be in our decisions and available for comment – that is to say, too late for comment to affect the decision .
Our lawyers have assessed our general approach to the release of information and they have agreed that we are acting in a way compatible with the rules of natural justice.
Here one needs to know what was put to the lawyers and therefore what exactly they commented on.
Given the extent of the information we can access, section 19 of our legislation limits what we release. True. We need to be able to demonstrate (= reveal?) any information we release for comment during an investigation [releasing is revealing/demonstrating] – which are [is?] the point(s) the petitioners are making [that?] are necessary for the purposes of that investigation. This sentence is hard to understand. This means we cannot simply release information because we hold it. That is of course true in general (see the Act), but in most cases the information can simply be released. Equally, we do
have to release information if we intend to use it (which should include information in the form of documents).
When deciding what to release for comment prior to making a decision, we take into account:
whether this evidence is already known and commented upon previously;
whether the evidence is new and will be important for the decision;
when we release information, we focus the attention of parties on any new and critical information by being very clear what we are asking them to comment on. The ’parties’ presumably include complainants and they need to see the information for that purpose. This also ensures we are acting within the powers that we have; and
the new information goes (may go?) beyond documents we get from the organisation and complainant and may include information we may have about legislation, policy etc that appear not to have been considered (Would the latter be ‘new’?).

Under section 19 of our legislation we can, and at times do, release information that would not have been available to the individual under the Data Protection Act 1998 (DPA) or the Freedom of Information (Scotland) Act 2002 (FOISA).
We have a power to release information for the purposes of an investigation (Yes), which means we could release information that we are using in reaching a decision, but which the individual who made the complaint would not otherwise be able to access. For example:
• Access to social work records after a person has died is very limited – we have taken a complaint from a nephew who wanted to complain about a discharge of his Aunt who had died. The Council could not release social work records to him. We accessed those records and he was given the opportunity to comment on those parts which were included in the decision.

• An advocate complained on behalf of a women with learning difficulties who had died in hospital. There was no family to consent to the release of clinical records. We accepted and investigated this complaint.

• At times, we will include some sections of legal advice obtained by organisations which they have been happy to provide us with in response to a complaint.

We have no quarrel with these examples, but they hardly weaken our general case.
Some categories of information we hold that would not necessarily be releasable under DPA or FOISA, subject to the application of legal tests in those Acts.
• Information relating to someone who has died – in some cases relatives can access this, but that is not always the case (such a disclosure would not be made under FOI or DPA).
• Confidential information about legal advice that qualifies for legal professional privilege obtained from an organisation.


• Information provided in confidence where disclosure would be an actionable breach of confidence (information protected by the Scots common law of confidence)
• Information that would not normally be released by the Scottish or UK governments even to a court
• Information provided in confidence to a Prison Disciplinary Committee
• Information (including health or social services information) where disclosure could result in harm or other detriment (to members of the public?)
• Information relating to third parties available on file this may be:
o Information about people who have raised neighbour concerns in a complaint relating to anti-social behaviour
o Information about the contact between a planning authority and a company/person in a complaint about enforcement, sometimes this relates to very sensitive financial data.

We have no quarrel with these examples either, but again they hardly weaken our general case.
As we have said above, if we consider it is necessary to release such information to comply with the rules of natural justice, we can do so. However a blanket obligation to share all of this would mean someone would be able to access information they would not be entitled to under DPA or FOISA (and that might be specifically protected under the DPA) and which they do not need to see, given that we are not using it to make a decision on the complaint
It could be argued that the 2002 Act could be changed to limit what information we could access, so that we would only access information that should be accessible to the complainant. Obviously we would not make that argument. However, that would not improve the quality of our investigations and would limit the complaints we could look at. It would arguably shift the balance of our investigations in favour of the organisations.
Our obligations under the Data Protection legislation.
An individual can make a subject access request to us under the DPA. In these circumstances, our practice is to release what we can to complainants about their complaint unless there are valid reasons not to. This (i.e. the released information?) may include information not released as part of the investigation but which contains personal data. However, it is worth noting that, if that is the case, none of this additional information will have been relied upon in the decision. This could be clearer. Given the meaning of “personal data”, can information on a complaint not be released to complainants because it includes their own names? On this point (On a separate point?), it may also be worth noting that the court process would not accept documents in their process which do not relate to the arguments being made.
It should be noted that the DPA contains a specific exemption at section 31 (Regulatory Activity) which provides that personal data being processed by the Scottish Public Services Ombudsman for the purpose of discharging the functions conferred upon the Ombudsman by the 2002 Act are exempt from the ‘subject information provisions’ in the DPA (which include the right to request personal data under the DPA), to the extent that the application of those provisions would be likely to prejudice the proper discharge of the Ombudsman’s functions. True. Corresponding provisions in relation to the Parliamentary Commissioner for Administration, the Commission for Local Administration in England, the Health Service Commissioner for England, the Public Services Ombudsman for Wales, the Assembly Ombudsman for Northern Ireland and the Northern Ireland Complaints Commissioner are
also included in the exemption for Regulatory Activity in section 31 of the DPA. It is not clear that this has much relevance.
It is important that a right to access information is separate from the information we are relying on and using in the investigation. This does not make logical sense. This means we can correctly manage the information we hold. There will be some circumstances where we have released information in a decision letter or report which we could not release in relation to a subject access request. This seems inappropriate. That information may be part of a larger bundle of information and we need to be sure we do not release anything additional in error. This whole paragraph is baffling.
 
Scottish Government letter to the Scottish Petitions Committee

St Andrew’s House, Regent Road, Edinburgh EH1 3DG
www.scotland.gov.uk
Justice Directorate
Civil Law and Legal System Division
T: 0131-244 3634
E. This email address is being protected from spambots. You need JavaScript enabled to view it.

Ned Sharratt
Public Petitions Clerks
Room T3.40
The Scottish Parliament
Edinburgh
EH99 1SP
In 2014 Scotland Welcomes the World
___
09 December 2014
Dear Mr Sharratt,
Consideration of Petition PE1538
We have noted the concerns that the petitioner raised, and the petitioners’ proposal that the Scottish Public Services Ombudsman (2002) be amended to ensure that complainers have a right to see all correspondence between the Ombudsman and the body under jurisdiction with regard to their complaint.
I would like to thank the Public Petitions Committee for drawing this petition, PE1538 to our attention.
Yours Sincerely
John Wallace
Policy Office
Tribunals & Administrative Justice
 
Letter to the petitioner:

 Local Government and Regeneration Committee Dr Richard Burton
Accountability Scotland
By Email Only  Room T3.40
The Scottish Parliament
EDINBURGH
EH99 1SP
Direct Tel: (0131) 348 5223
(RNID Typetalk calls welcome)
Fax: (0131) 348 5600
(Central) Textphone: (0131) 348 5415
This email address is being protected from spambots. You need JavaScript enabled to view it.
19 January 2015

 Dear Dr Burton,
Public Petition PE1538
As you are aware, the Local Government and Regeneration Committee has been considering your petition PE1538 as part of its ongoing scrutiny of the Scottish Public Services Ombudsman’s (“SPSO”) annual reporting process since it was referred to us by the Public Petitions Committee on 25 November 2014. As part of this consideration the Committee took account of the written and oral evidence provided to the Public Petitions Committee by Accountability Scotland.


 The Committee took oral evidence from the SPSO on 7 January 2015 on his 2013-14 annual report. The Official Report transcript of this session is available on the Committee’s website.1 During that session, discussion took place with the SPSO on the subject of your petition and on the internal guidance the SPSO issues to its staff relating to when and how to release information during the course of an SPSO investigation.2
During that session the SPSO confirmed that this guidance was not in the public domain, however the SPSO stated that he would provide a copy to anyone who requested it. The SPSO undertook to provide the Committee with extracts from its guidance, for information. The Committee agreed  to consider what further action, if any, it felt it could progress on your petition once it had a chance to examine this guidance.
The SPSO provided this information to the Committee very soon after the evidence session. This allowed the Committee to put this information into the public domain with the paperwork for its meeting on 14 January 2015, and this is available online.3
The Committee considered whether it wished to take any further action on PE1538 at its meeting on 14 January, in light of the information is received from the SPSO. The Committee unanimously agreed that it did not wish to take any further action on the petition, and so it decided to close the petition as of 14 January 2015. Referring to the Committee’s decision, the Convener Mr Kevin Stewart MSP made the following remarks which you may wish to note—
“Although the matter is not covered by the petition, I am aware that the Public Petitions Committee has discussed a review of the operation of the SPSO. It is my opinion that such a review would be premature, given that the parent act— the Scottish Public Services Ombudsman Act 2002—was reviewed by a committee of this Parliament in 2009. That review led to a number of changes being made to the 2002 act, including to section 19, which is the subject of the petition. The 2009 review, which looked at all the bodies that were supported by the Scottish Parliamentary Corporate Body, included consideration of their operation and whether they were needed or could be amalgamated. Given the outcome of that review, consideration of a further review at this point would be premature. Do members have any views on that position?”4
Committee members did not express any views on this issue. Consequently, your petition has now been closed. I am copying this correspondence to the Public Petition Committee clerks so that they are aware of the decision of the Committee.
I appreciate this decision may not be the outcome you had hoped for in relation to the petition. You are, of course, free to engage further with MSPs on this issue if you so wish. That is a matter for you to decide upon.
The Committee wishes to record it thanks to you for engaging in its work by lodging your petition, and wishes you well in your future endeavours.
Yours sincerely,
Seán Wixted
Assistant Clerk to the Committee

Notes
 1 Local Government and Regeneration Committee Official report 7 January 2015: http://www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=9710
2 See columns 29 to 32 of the Official Report of 7 January 2015. 
3 Public papers for meeting of 14 January 2015, Paper LGR/S4/15/2/2 (PDF document 898KB): http://www.scottish.parliament.uk/S4_LocalGovernmentandRegenerationCommittee/Meeting%20Papers/20150114_- _Agenda_and_meeting_papers.pdf
4 Local Government and Regeneration Committee Official Report 14 January 2015 (Col 3) (PDF document): http://www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=9723&mode=pdf