1 Feb 2008, 09:00

A woman asked the Parliamentary Commissioner for the Environment (PCE) to investigate an environmental dispute she had with her local council. The PCE's office considered the matter, but concluded that there was no way in which it could assist her.

The woman then asked for access to the PCE's file. The PCE gave her some of the information (for example copies of the correspondence she had had with them), but withheld various documents. The woman then asked the Ombudsmen to review the PCE's decision to withhold those documents.

The file contained some information that was not about the woman (this was 'official information', which fell within the Ombudsmen's jurisdiction). It also contained information about the woman herself (this was 'personal information', which fell under our jurisdiction). These two categories were not always easy to separate. For example, some documents contained a mixture of official information and personal information. To avoid confusion and unnecessary duplication, we investigated the woman's complaint in parallel with the Ombudsmen.

Our investigation particularly focused on information that the PCE had received from third parties about the woman's dispute with the council.

Section 7 of the Privacy Act and section 20 of the Environment Act

Principle 6 of the Privacy Act states that individuals have the right to request access to information about themselves. This right is subject to the provisions in parts 4 and 5 of the Act. Also, under section 7(2) of the Act:

7(2) Nothing in principle 6 … derogates from any provision that is contained in any other Act of Parliament and that –

(a) imposes a prohibition or restriction in relation to the availability of personal information.

Section 20(2) of the Environment Act 1986 is such a provision. It states:

20(2) Except for purposes connected with the administration of this Act or with the carrying out of the provisions of this Act, the [Parliamentary] Commissioner [for the Environment] shall maintain secrecy in respect of all matters that come to [her] knowledge in the exercise and performance of [her] powers and functions under this Act.

We took the view that this section clearly restricts the PCE in what she can provide to requesters. She can only provide personal information where she believes that information is for purposes connected with the administration of the Environment Act or with carrying out the provisions of that Act. If it is not for those purposes, she must maintain secrecy. The Environment Act therefore limits the rights that would usually be available under principle 6.

The PCE took the view that releasing the information here would not be for a purpose connected with the administration of the Environment Act, or carrying out its provisions. Indeed, she argued that it would impair her ability to function under that Act.

We agreed. The PCE has an obligation under the Environment Act to investigate complaints. To do so, she needs to talk to all relevant people and get free and frank information from them. That level of frankness would be seriously impaired if the Privacy Act imposed additional obligations on the PCE to release information that she, in her specialist judgment, believed she was obliged to keep secret.

We therefore concluded that the PCE was entitled to withhold the remaining personal information, and I closed my file.

The Ombudsmen concluded that the Official Information Act also permitted the PCE to withhold the remaining official information on the file.

August 2008

Access to personal information – Parliamentary Commissioner for the Environment – obligations of secrecy under the Environment Act – Privacy Act overridden – Privacy Act 1993 principle 6, section 7(2); Environment Act 1986 section 20