Here we report on new research on the use of informal resolution in handling complaints about Freedom of Information. The research is reported in ‘Alternative Systems of Dispute Resolution and the Right to Freedom of Information’, Kevin Dunion and Hugo Rojas TRANSPARENCIA & SOCIEDAD, No. 3, 2015, pp. 69-91.
Arising out of research jointly conducted by Kevin Dunion, Honorary Professor at Dundee Law School, and Hugo Rojas, Professor of Sociology of Law at the Universidad Alberto Hurtado, Chile, this article explains the negotiation and facilitation models applied by the Information Commissioners in Scotland, England, and Ireland to informally resolve, at an early stage, Freedom of Information complaints or appeals.
The authors state:
‘A legal system should do more than just recognise the right to freedom of information. In order for the relevant laws to be effective, it is imperative that any appeals against public agencies that do not supply the information requested by the applicant are resolved in a timely manner. If the public agency responsible for resolving freedom of information appeals promotes an overly formalist culture, focused mainly on public law, the review and case analysis of the disputes could take longer than is reasonable. In addition to impairing the effectiveness of the law, delays in resolving the cases lead to public dissatisfaction with freedom of information procedures, and a lower level of confidence in the authorities and civil servants responsible for them.’
Several countries have explored alternative mechanisms to the formal decision notice that the competent entity would normally be required to issue to deal with the claims and appeals on Freedom of Information. The authors analyse the informal resolution practices used by the Information Commissioners in England, Scotland, and Ireland and recommend the informal resolution methodology of these organisations could be replicated and refined in other countries.
The suitability of informal resolution for different types of complaints about Freedom of Information requests is a key consideration. The authors note that some complaints, especially those involving ‘service’ issues, may be more amenable to being informally resolved:
‘The use of an IR is readily understandable in circumstances in which the complaint relates to the service provided to a client or user, which is often a subjective question that an Ombudsman has to resolve. However, when it concerns freedom of information it might be considered that the IR has less of a practical application. If the right to freedom of information is acknowledged in law, normally it has a general application as regards the majority of public agencies, and ultimately, an appeal should be resolved through a public decision notice.’
The first part of the article describes the alternative dispute mechanisms used by these Information Commissioners. The second part discusses the merits and effectiveness using of informal resolution in Freedom of Information cases.
A critical review of those models is made to identify elements that may be useful for comparable Latin American public agencies which protect the right of Freedom of Information.
This study was done within the framework of the EUROsociAL II Programme of the European Union, which is a coordinating partner of the FIIAP Foundation and operational partner of the CEDDET Foundation.
We have seen this past week the publication of two significant markers in the move towards reform of the ombudsman landscape. Both highlight the difficulties faced by a ‘system’ of redress that has developed in an ad hoc way. Both take account of the increased consumerisation of redress, in public- and private-sector disputes. Both attempt, in their own way, to bring about greater harmonisation of the system and to improve access, consistency and accountability. They take very different approaches to such attempts, however: one, to set a relatively low baseline of standards which which redress providers must comply, and thus encourage a multitude of competing providers; the other, to merge existing redress providers into a single scheme, with enhanced powers and remit.
On 17 March, the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations were laid before Parliament. These regulations are the first step towards implementation of the EU ADR Directive, which requires member states to ensure that independent ADR is available for disputes over goods and services. They set out the requirements for ADR providers and the bodies (competent authorities) that will approve them. The Department for Business explains that that the regulations will ‘overlay an existing landscape of disparate provision of alternative dispute resolution’.
‘Disparate’ is perhaps a kind way to describe the landscape. In spite of calls for greater harmonisation, the motley range of ADR provision will remain, in some cases providers competing with each other for customers (businesses) and sharing only compliance with the minimum requirements which with providers must comply.
Although they are minimum requirements, there is something positive in the fact that information requirements will apply to all approved providers. Schedule 3 sets out the requirements that competent authorities must be satisfied that an ADR provider meets before they can be approved. The requirements for transparency (16 of them) are listed under section 5 and require that an ADR provider must state on its website a range of information about how it works, including its procedural rules and the principles the ADR provider applies, and the main considerations it takes into account when seeking to resolve a dispute. That’s helpful, although the level of detail of such information is left open.
Then today we have the long-awaited Cabinet Office consultation on the reform of public services ombudsmen in England. This sets out a number of high-level questions about the overall premise, leaving the detail to a later stage. The questions relate to the underlying principles of the proposed reforms; which services to include; what sector-specific expertise to retain, and what management structure; mechanisms and routes of access for complainants; and investigative powers. The deadline for responses to the consultation is 16 June 2015.
The consultation takes forward the proposals of the Gordon Review, which in its report completed last year but only published today, recommended creating a new Public Service Ombudsman (PSO), bringing together the existing jurisdictions of the Parliamentary and Health Service Ombudsman (PHSO), Local Government Ombudsman (LGO) and Housing Ombudsman (HO). Gordon proposed bringing into the remit of a single Public services ombudsman other public services that aren’t currently subject to an ombudsman’s oversight. Because of the complexity of the way public services are now contracted, paid for and provided, Gordon also recommended ‘following the public pound’ and including within the ombudsman’s jurisdiction arm’s length bodies and private-sector providers who either receive public funds or are contracted by government to deliver public services.
From the perspective of the research we carried out on informal resolution by ombudsmen, it is interesting to note that Gordon highlights as one of the improvements to come about with the integration of the public services ombudsmen is greater harmonisation of published information about complaints and outcomes. The Review report states, in para 140:
“In response to the Law Commission’s report, the public service ombudsmen in England accepted the need for greater harmonisation of practice around the way that details about complaints and ombudsmen conclusions are published and shared. The emphasis in the Law Commission’s report was rightly placed on how transparency around ombudsman decisions can be increased – and this was subsequently picked up by PASC in the context of how it might be possible to increase the public visibility of the ombudsman brand. Transparency in this area is also a key means by which the PSO can drive its own internal standards, building and demonstrating the quality of investigations and building a sense of autonomy and responsibility amongst staff within the organisation.”
Transparency and accountability are principles that all ombudsmen subscribe to. Indeed, the vast majority of schemes that we surveyed in our research on informal resolution publish annual reports containing a variety of aspects of their work. Invariably, these include figures about the volume of complaints received and how they are addressed and concluded. However, there are nearly as many ways of presenting those (and other) facts as there are schemes, with the result that meaningful comparisons are almost impossible.
We also found in our survey that transparency was a likely casualty of increased informality. Although formal decisions (or determinations or rulings) are often made public, complaints resolved informally are not. The majority of schemes we surveyed publish some information on informally resolved complaints – most commonly in the form of anonymised selected case summaries. Some, however, publish only statistics, and some publish nothing at all, including one scheme using informal resolution in 90% of its complaints.
If only decisions are published, and these become the minority method of closing complaints, there is less opportunity for ombudsmen to give feedback and to set standards for good complaints handling for the bodies in their jurisdiction. It also makes it difficult for complainants, and those complained about, to assess a proposed resolution against decided outcomes.
We will have to wait to see whether these two roads to reform are in fact heading in opposite directions.
Ebbs and flows: Select Committee explores changing role of Housing Ombudsman, including use of informal resolutionPosted: December 22, 2014
In a pre-appointment hearing on 16 December 2014, the Communities and Local Government Select Committee questioned the preferred candidate for the role of Housing Ombudsman, a vacancy that opened up when the former ombudsman retired in October.
The recruitment process itself was unusual. There was a very short timetable (six weeks from advertisements to preferred candidate being identified). The Select Committee had not been involved in previous appointments but asked to hold a pre-appointment hearing in this case, citing its similar role with the Local Government Ombudsman. And the post is clearly a temporary one whose future is tied up with the Gordon review of the Parliamentary Ombudsman and the public services ombudsmen for England, announced by Oliver Letwin in July. All those aspects are of interest in themselves.
We’re interested particularly in the mentions of informal resolution that were made at the hearing. The candidate, Denise Fowler, is a civil servant, solicitor and former housing adviser. She has experience of working with the Housing Ombudsman, and she mentioned in her responses changes in the way the ombudsman approaches informal resolution. Our research on informal resolution found that the process changes she mentions were significant and not just a matter of terminology.
An extract of the session transcript is below, with commentary from our research findings:
Q22 Mark Pawsey: You told us that you worked at the Housing Ombudsman before, and that was 2000 to 2002, I think. Is that right?
Denise Fowler: Yes.
Mark Pawsey: That is 12 years ago now.
Denise Fowler: Yes.
Q23 Mark Pawsey: Regarding what you know about the Housing Ombudsman now, how is it different from what it was when you were there before?
Denise Fowler: What it looks like is that they have done a lot of work to move towards early resolution of complaints and real-time resolution of complaints. From what I can see on the website, 87% of complaints are now resolved informally, which seems amazing.
Q24 Mark Pawsey: What would it have been previously?
Denise Fowler: I do not know what the exact figures were when I was there in 2000 to 2002.
Q25 Mark Pawsey: Was it significantly less than that?
Denise Fowler: Significantly less than that. We had an evaluation team that used to seek to try to work with landlords while issues were still going through the complaints procedure and try to resolve things earlier, and we had a procedure that had an informal and a formal determination, but it was a different procedure. That is one of the big changes.
[Commentary: Our research found that in 2013-14 the vast majority of complaints (5,004 out of 6,582 enquiries received) were closed by what the ombudsman calls ‘local resolution’. The change Fowler notes appears to reflect a significant change in process, with a number of complaints referred back for resolution between tenant and landlord. The ombudsman told us, in our research, “We will focus on helping the parties to reach resolution themselves through the available local procedures (primarily the landlord’s internal complaints procedures and also the designated persons).”
This contrasts with the scheme’s previous role in providing informal resolution itself. In the late 1990s, the Housing Ombudsman was perhaps the most innovative among ombudsmen in its use of informal resolution, or appropriate dispute resolution (ADR); a third of its complaints were either settled or rejected, but of the rest, it closed 20% of cases by informal conciliation, 25% by mediation, 6% by arbitration and 15% by binding decision.
With the implementation of the Localism Act 2011, the Housing Ombudsman changed the way complainants can access the scheme, envisioning a more active role in informal resolution by MPs, councilors and tenant panels. In practice, the Housing Ombudsman told us, “Our intervention will enable the parties to talk to each other to find a solution they can both accept. By being conciliatory and inquisitorial in our approach we can help bring about a better and longer-lasting solution to the problem and can help preserve the ongoing relationship between landlords and tenants. We will help the parties to reach a consensus or acceptable agreement which reflects the best possible outcome for all involved.”]
Q34 Chair: What about transparency?
Denise Fowler: That is exactly what I think should be happening. That is what I said about having that data and publishing it.
Q35 Chair: And publishing the results of investigations as well?
Denise Fowler: Yes. The results of investigations are done anonymously at the moment, aren’t they? There is an argument certainly if we get into formal investigations. There is an argument about informal resolution that it is helpful, to encourage informal resolution, to keep those anonymous, but in terms of the formal resolution, I think there is an argument for making those public.
Q36 Chair: One of the things that came up with the Local Government Ombudsman was that, where things were done informally and there were precedents that came out of a resolution, if it was simply not published in any form, that could not be used as a precedent in other cases. Most people would not know about it. Is there not an issue here to be looked at as well?
Denise Fowler: I think that is different from naming names.
[Commentary: Lack of transparency of informally resolved complaints has been a long-standing focus of criticism – for example, as noted by the Chair of this session, the CLG Select Committee noted concerns [http://www.publications.parliament.uk/pa/cm201213/cmselect/cmcomloc/431/43102.htm] about the Local Government Ombudsman’s use of mediation and informal resolution and stated: “the Commission needs to be completely clear how the distinct processes operate and differ as well as the criteria against which complaints are allocated to these resolution processes.”
Academics have also raised concerns about transparency of informal resolution by ombuds – for example, Richard Kirkham and Philip Wells in “The Ombudsman, Tribunals and Administrative Justice Section: Evolving standards in the complaints branch”.
Responding to the Law Commission’s 2010 consultation on Public Services Ombudsmen, Advice Services Alliance (ASA) said that the use of alternatives to investigation may reduce the transparency of the public services ombudsmen’s work. ASA conceded that such enhanced powers would be welcome if they delivered fair outcomes for complainants more promptly and suggested two key principles: transparency of outcomes and the right for a complainant to request an investigation.
On its website, the Housing Ombudsman publishes case studies, including those of informally resolved complaints.]
Following the pre-appointment hearing, on 18 December, the Select Committee endorsed Ms Fowler as candidate for the role. They did so on the basis that she retire from the civil service rather than take a career break, because of the need for the Housing Ombudsman to be – and to be seen to be – independent of central government. The committee’s report and minutes of the hearing are available here.
‘Transparency’ is a bit of a buzz word in the ombudsman world. Specifically, it features in Article 7 of the EU ADR Directive (to be implemented in the UK from summer 2015) and in the “Guide to principles of good complaint handling” of the Ombudsman Association. More generally, it is one of the characteristics cited frequently in the promotion of the ombudsman ‘brand’. But do ombudsmen walk the walk or just talk the talk when it comes to transparency?
In our research on the way ombudsmen use informal resolution, we are coming up against an odd sort of transparency. The organisations we’ve surveyed have been very generous in responding to us – that in itself is a form of transparency. Most, if not all, publish information on their work. The actual meaning of that information, however, is often quite opaque.
We noted in our last progress report that ombudsmen and other complaint handlers don’t use the same terminology to describe the complaints they receive and how they process them. We’re also finding that they don’t report on outcomes in the same way – something that the authors of The Ombudsman Enterprise identified when they stated that official statistics published by ombudsmen “have to be examined with care”. They note that changing methodologies and definitions “can make comparisons from one year to the next and between schemes problematic”. ‘Problematic’ is putting it rather mildly. Trying to make sense of reported statistics requires examining in detail the context behind the figures we’ve been given, something that isn’t within the scope of our current project but which requires further research.
‘Harmonisation’ is another buzz word. A recent essay on “Harmonising the Ombudsman Landscape” argues that redress providers under the EU ADR Directive should be modeled on ombudsmen as a way to promote the brand in the eyes of consumers, in part because of the level of transparency:
“The competent authority, alongside the Ombudsman Association, should work with ADR bodies to align the practice and processes that they use. For best possible effect, this should be done with the core model of an ombudsman scheme in mind: for the transparency of process it affords; for the simplification of the landscape; for the benefit of justice for the consumer; for the uniformity of decision; and for the benefits the gathered data can provide to regulation, government, and the consumer.” [p.4]
There are many assumptions here – that ombudsman processes are transparent, that they deliver justice, that decisions are or could be made uniform. These assumptions need further interrogation, something highlighted at a conference on ADR and ombudsman held in Oxford in April this year. The conference organisers concluded in a policy brief that ombudsmen will need to work toward greater harmonisation of processes, terminology, and standards in order to become an essential part of the justice system.
The EU ADR Directive and transparency
The issue of transparency takes on some urgency in light of the impending implementation of the EU ADR Directive. In Article 7(2), the Directive states that all ADR providers shall make their activity reports publicly available, and these should include, among other statistics:
(a) the number of disputes received
(c) the rate of disputes the ADR entity has refused to deal with and the percentage share of the types of grounds for such refusal …
(d) …the percentage shares of solutions proposed or imposed in favour of the consumer and in favour of the trader, and of disputes resolved by an amicable solution
(e) the percentage share of ADR procedures which were discontinued and, if known, the reasons for their discontinuation
(f) the average time taken to resolve disputes
(g) the rate of compliance, if known, with the outcomes of the ADR procedures…
Let’s take a) above as an example. The number of complaints received is reported in a number of different ways currently. Some schemes report all contacts or enquiries, and then break this down into a further category of accepted or eligible complaints. Not every enquiry is a complaint.
Figure c) above refers to those complaints that are out of jurisdiction, late, premature, or otherwise not within scope. Subtracting the figure in c) from that in a) should give you the figure of accepted or eligible complaints.
But it isn’t that simple, because in this space between ‘received’ and ‘resolved’ we have more than only those complaints the scheme has refused to deal with. We also have ones (according to our survey responses) where advice is given or where a complaint might be in scope but can be remedied with a ‘quick fix’. We have some that may or may not be in scope but might be amenable to resolution with the ombudsman’s intervention. And we have those that are accepted as eligible but not dealt with by one of the three categories of process set out in the directive: a solution, proposed, imposed, or agreed between the parties. Where, for example, a case handler identifies that a suitable remedy has been offered and declines to progress the complaint, is this a proposed solution or a rejection? Confusingly, we have found that this is sometimes categorised as a ‘resolution’.
When we move on the requirements to provide a rate or percentage, we need to know which figure is being used as the starting point. For instance, is the percentage of complaints ‘resolved by amicable solution’ referring to the percentage of all complaints received (a) or is it the percentage of all accepted or eligible complaints (c)? We are finding a range of approaches to this question, making it difficult to make comparisons or draw meaningful conclusions.
Why does it matter?
In a recent essay on evolving standards in ombudsmanry, Richard Kirkham and Philip Wells examine issues of due process and fairness in ombudsmen decision-making, which are linked to openness and transparency:
“The uncertainty surrounding decision-making in the sector is made more marked by the trend over time towards resolving complaints at the pre-report stage, often by way of a letter rather than a formally completed report (Buck et al., 2011 , Ch. 4). The outcomes of such early redress have often not been published. … But the strength of the connections between the benefits to be gained from transparency and the perceived weaknesses in the complaint-handling operation do provide strong grounds for believing that more openness about the decision-making process of complaint-handlers could significantly improve confidence in complaint-handling schemes.” [p.196].
In a 2010 consultation paper on public services ombudsmen, the Law Commission originally proposed that the ombudsmen should harmonise their reporting terminology and all publish reasons for decisions not to investigate specific complaints. This was considered to be overly onerous and was opposed by the public services ombudsmen, and the Law Commission altered its recommendation. It still argued for greater transparency to allow complainants to understand the handling of their complaints, but it stepped back from recommending that the terminology of the reports issued by each ombudsmen should be harmonised.
Does transparency require standardisation? Does harmonisation mean uniformity? And how do harmonisation and transparency fit with flexibility? The call for greater consistency among ombudsmen in the processes they use (for example, in the Harmonisation essay cited above) could be read as a call for a single informal resolution process to be adopted among ombudsmen. This would be an interesting point for us to reflect on as we take this research forward and discuss it with practitioners and policy makers in the ombudsman world.