Direct Investigations and Direct Investigation Assessments

The request was partially successful.

Dear Office of The Ombudsman,

I have been looking for the information about the Direct Investigations (DIs) and the Direct Investigation Assessments (DI Assessments) conducted by the Office of The Ombudsman ("the Office"), including those conducted by the former Office of the Commissioner for Administrative Complaints ("OCAC"). However, the publicly available information appears to be rather incomplete.

I therefore request the full list of all DIs and DI Assessments conducted by the Office, including those by the former OCAC, since its establishment. The information requested includes (a) the full Chinese and English titles of the investigations, (b) case reference numbers, (c) the government departments and/or public authorities involved, and (d) the dates of initiation and completion of the investigations.

I am looking for your early reply. Thank you very much.

Yours faithfully,
stranbusel

Dear Office of The Ombudsman,

Please allow me to clarify that the request is made in accordance with the Code on Access to Information. Thank you.

Yours faithfully,
stranbusel

申訴專員公署

Fax                                  : 2956 2622
Tel                                   : 2629 0428
Our Ref                 : L/M(2) to OMB/G/16/03 III
Subject                 : Request for Information - Direct Investigations
and Direct
Investigation Assessments

Dear stranbusel,
We  refer  to  your  six  emails  of 26 October 2015 requesting
information  about  our  direct  investigations  and  direct
 investigation
assessments.  Your requests are still under processing.  We’ll let you
have
a reply as soon as we can.

Yours sincerely,

( Francesca Lam )
for The Ombudsman

show quoted sections

Dear Office of The Ombudsman,

The six emails of 26 October 2015 correspond to five different Access to Information ("ATI") requests. Each of these ATI requests concerns different aspects of the Direct Investigations and Direct Investigation Assessments conducted by the Office of The Ombudsman ("the Office").

May I therefore request the Office to reply to each of the requests individually and to provide the respective ATI case numbers thereof? Instead of providing a substantive reply to the five distinct ATI requests altogether, please reply to each of them whenever the information and/or the decision from the Office is available.

Thank you.

Yours faithfully,
stranbusel

申訴專員公署

2 Attachment

Fax                : 2882 8149
Tel                 : 2629 0428
Our Ref        : L/M (2a) to OMB/G/16/03 III
Subject        : Request for Information - Direct Investigations and
Direct Investigation Assessments
Dear stranbusel,

                We refer to your six emails of 26 October 2015 requesting
information about our direct investigations (“DIs”) and direct
investigation assessments (“DIAs”).  As your requests (though sent from
different email addresses) are inter-related, we will explain in this
email our considerations in handling requests for information about DIs
and DIAs.  Our replies to your specific requests via the respective email
addresses will follow.

2.                First of all, please note that taking into account our
statutory obligation to maintain secrecy in respect of matters that arise
from investigations or complaints, this Office has developed our own
Policy on Access to Information, details of which can be found at our
website:
[1]http://www.ombudsman.hk/en-s/about_this_....

3.                The Ombudsman has the power to investigate into acts of
maladministration in the absence of a complaint, i.e. DI.  Before deciding
whether or not to launch a DI, we may conduct preliminary inquiries, i.e.
DIA.

4.                The Ombudsman Ordinance essentially requires this Office
to keep confidential matters relating to our investigations (including
DIs).  The Ordinance regulates our investigation procedures, and sets out
clearly the obligations and rights of organisations under investigation
and any other people concerned.  Under such constraints, what The
Ombudsman can do in respect of public disclosure of information is: to
publish a report on any completed investigation in such manner as she
thinks fit, if she is of the opinion that it is in the public interest to
do so.

5.                As DIAs are in fact preliminary inquiries conducted for
determining whether DIs should be launched, this Office when conducting a
DIA, likewise collects information from the organisation(s) and other
people concerned.  Just like DIs, it is necessary to observe
confidentiality, in order that such organisations/people would provide
this Office with information/views without reservations.  

6.                If this Office were to freely disclose to the public
information relating to DIAs, that would clearly be against the mutual
agreement/understanding we have with the organisations and other people
concerned.  The trust that they have on us and their cooperation with us
would be jeopardised.  Besides, such information disclosure would affect
our DI work, since information collected during DIA may be used in
subsequent DI.  Moreoever, DIA work is in essence no different from DI
work; to freely disclose to the public information relating to DIAs would
be in serious conflict, without any justifications, with the
confidentiality rules imposed on DIs by the Ordinance.

7.                In the light of what is stated in paragraphs 5 and 6
above, this Office has in fact conducted a review on the question of
public disclosure of information relating to DIAs.  We appreciate that
some members of the public may wish to know more about our work.  Hence,
we have decided to carry out DIs as far as possible after DIAs, and
subject to the legal constraints mentioned in paragraph 4 above, publish
the DI reports where suitable.  We consider this to be the most
appropriate way of providing the public with more information about our
work and achievements.

8.                Notwithstanding this, whatever DIA-related information
published in the past is considered to be in the public domain and can
continue to be made available to the public.

9.                You requested a full list of all DIs and DIAs conducted
by this Office.  A full list of DIs completed is attached.  In accordance
with paragraph 8 above, a list of DIAs previously published in our Annual
Reports is also attached.

Yours sincerely,

( Kathleen Chan )
for The Ombudsman

From:        stranbusel <[FOI #49 email]>
To:        FOI requests at Office of The Ombudsman <[Office of The Ombudsman request email]>,
Date:        26/10/2015 04:58
Subject:        Freedom of Information request - Direct Investigations and
Direct Investigation Assessments

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Dear Office of The Ombudsman,

I have been looking for the information about the Direct Investigations
(DIs) and the Direct Investigation Assessments (DI Assessments) conducted
by the Office of The Ombudsman ("the Office"), including those conducted
by the former Office of the Commissioner for Administrative Complaints
("OCAC"). However, the publicly available information appears to be rather
incomplete.

I therefore request the full list of all DIs and DI Assessments conducted
by the Office, including those by the former OCAC, since its
establishment. The information requested includes (a) the full Chinese and
English titles of the investigations, (b) case reference numbers, (c) the
government departments and/or public authorities involved, and (d) the
dates of initiation and completion of the investigations.

I am looking for your early reply. Thank you very much.

Yours faithfully,
stranbusel

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Dear The Ombudsman,

Please pass this on to The Ombudsman, who conducts reviews of Access to Information (ATI) requests..

I am writing to request an internal review of Office of The Ombudsman's handling of my ATI request "Direct Investigations and Direct Investigation Assessments".

The Ombudsman Ordinance (the Ordinance) Section 15(1) states that The Ombudsman shall maintain secrecy in respect of all matters that
(a) arise from any investigation or complaint made to the Ombudsman; and
(b) come to their actual knowledge in the exercise of their functions.

According to Section 2 of the Ordinance, an "investigation" means an investigation by the Ombudsman under the Ordinance, which only includes "Direct Investigations" (DIs) and "Full Investigations" (FIs). "Direct Investigation Assessments" (DI Assessments), Inquiries, and Mediations are just the preliminary inquiries as defined in Section 11A of the Ordinance.

Inquiries and Mediations, on the other hand, arise from complaints made to The Ombudsman and therefore the disclosure of their information is regulated under Section 15(1) of the Ordinance.

DI Assessments do not satisfy the definition of "investigation" in the Ordinance and also do not arise from any complaint made to The Ombudsman. So DI Assessments do not meet the criteria of Section 15(1)(a) of the Ordinance, and hence are not regulated under Section 15 regarding the maintenance of secrecy. The Code on Access to Information is therefore the ONLY set of regulations concerning whether The Ombudsman should disclose the information about DI Assessments spontaneously or upon requests from the public.

In my request, I have only requested The Ombudsman to provide the list of DI Assessments (and DIs), including
(a) the full Chinese and English titles of the investigations;
(b) case reference numbers;
(c) the government departments and/or public authorities involved; and
(d) the dates of initiation and completion of the investigations.

All The Ombudsmen in the past have been publishing the above information in the Annual Reports of the Office of The Ombudsman. This suggests that The Ombudsmen in the past have considered that it is in the public interest to disclose and publish regularly the aforementioned information about DIs and DI Assessments. The fact that the current Ombudsman refuses to disclose the basic information about DI Assessments conducted in the Year 2015/16 suggests that her understanding of what is in the public interest has changed substantively.

I have to make it very clear that my request did NOT ask the Office of The Ombudsman to disclose every detail of the investigations or inquiries whatsoever, such as the identities of the individuals who have provided information and/or opinions to The Ombudsman, or the details of the evidence or opinions on which the investigation or inquiries are based. I completely agree that the disclosure of such information could jeopardise the trust of the informants and their cooperation with the Office of The Ombudsman. However, the Code on Access to Information can fully address all these concerns. In particular, The Ombudsman may use paragraphs 2.10, 2.14, and 2.15 of the Code on Access to Information to refuse these requests, if such requests exist at all.

In your paragraph 4, you mentioned that "what The Ombudsman can do in respect of public disclosure of information is: to publish a report on any completed investigation in such manner as [he/]she thinks fit, if [he/]she is of the opinion that it is in the public interest to do so." This statement is plainly not true. The Ombudsman can disclose all the basic information as well as the reports of all DI Assessments – as long as (1) the information of the identities of individuals who have provided information to The Ombudsman and the preliminary opinions between The Ombudsman and the organisations/individuals of concern remain confidential; (2) none of the information falls in the categories of the Code on Access to Information in which the ATI request may be refused.

In paragraph 7, you mentioned that "[the Office of The Ombudsman] have decided to carry out DIs as far as possible after DI A[ssessment]s, and subject to the legal constraints mentioned in paragraph 4 above, publish the DI reports where suitable." This is the most ridiculous and irrational response I can ever imagine. DI Assessments are the preliminary inquiries for determining whether DI should be launched (paragraph 5 of your response). If the DI Assessment finds no significant maladministration or the organisation concerned has already made improvement on the subject matter, then The Office of The Ombudsman should simply conclude the study and not waste any investigation resources to conduct unnecessary DIs!

As I have already explained clearly above, conducting unnecessary DIs so as to publish the investigations in the form of DI reports is not the only, or "appropriate" in any logical sense, way of providing the public with the information about DI Assessments. There is no section in the Ordinance restricting the disclosure of the results and scope of DI Assessments – this in fact has long been the practice of the previous Ombudsmen. As for the sensitive information of DI Assessments, such as the identities of individuals and preliminary opinions, The Ombudsman of course cannot publish these in the Annual Reports. When it comes to requests or enquires from the public, The Ombudsman simply has to respond in accordance to the Code on Access to Information, which offers enough protection for the confidentiality and secrecy of sensitive information.

In fact, the very nature of the work of the Office of The Ombudsman suggests that all DI Assessments and DIs are in the public interest (otherwise the DI Assessment shall not be initiated at all). The Ombudsman ought to disclose all the information I have requested in this request, in particular, the list of DI Assessments conducted in the Year 2015/16.

From the above, the Office of The Ombudsman has wrongly interpreted the The Ombudsman Ordinance and the Code on Access to Information. I hereby request The Ombudsman to conduct a review of my ATI request.

A full history of my ATI request and all correspondence is available on the Internet at this address: https://accessinfo.hk/en/request/49 .

I am looking for your prompt reply. Thank you very much.

Yours faithfully,
stranbusel

申訴專員公署

Fax           : 2882 8149
Tel            : 2629 0428
Our Ref   : L/M (2a) to OMB/G/16/03 III
Subject    : Review of Request for Information – Direct Investigations
and Direct Investigation Assessments

Dear stranbusel,

                We refer to your email of 3 January 2016.

2.                 This Office is still reviewing your above request.  We
will let you have a reply as soon as we can.

Yours sincerely,

( Sindy Lee )
for The Ombudsman

From:        stranbusel <[FOI #49 email]>
To:        FOI requests at Office of The Ombudsman <[Office of The Ombudsman request email]>,
Date:        03/01/2016 23:32
Subject:        Internal review of Freedom of Information request - Direct
Investigations and Direct Investigation Assessments

show quoted sections

Please use this email address for all replies to this request:
[FOI #49 email]

Disclaimer: This message and any reply that you make will be published on
the internet. Our privacy and copyright policies:
[2]https://accessinfo.hk/en/help/officers

If you find this service useful as an FOI officer, please ask your web
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2. https://accessinfo.hk/en/help/officers

申訴專員公署

Fax        : 2882 8149
Tel        : 2629 0428
Our Ref        : L/M (2a) to OMB/G/16/03 III
Subject        : Review of Request for Information – Lists of Direct
Investigations and Direct Investigation Assessments

Dear Stranbusel,

                On 16 November 2015, we sent you a reply regarding your
request for a List of Direct Investigations (“DIs”) and a List of Direct
Investigation Assessments (“DIAs”).  For the List of DIs, we have already
provided you with all the information you requested.  As for the List of
DIAs, we have provided you with the information published in our Annual
Reports, together with an explanation.

Your Request for Review

2.                On 3 January 2016, you sent us an email requesting this
Office to review your request for information.  You opined that:

(1)        The Ombudsman Ordinance (“the Ordinance”) does not preclude
this Office from disclosing information about DIAs; and this Office should
decide whether or not to disclose those information in compliance with the
provisions of the Code on Access to Information (“the Code”).

(2)        You did not request this Office to disclose all relevant
information of our DIAs; and you only requested this Office to disclose:
the full titles in Chinese and English of our DIAs (and DIs), the case
numbers, the Government departments and/or public organisations involved,
and the commencement and completion dates of inquiries.
(3)        The information that you requested this Office to disclose
should not be among those the disclosure of which may be refused under the
Code^1.  

Our Reply

3.                We have completed our review of your request for
information and here is our substantive reply.

4.                While the Ordinance does not specifically state that
this Office must keep confidential all information about our DIAs, the
work of DIAs and DIs are, as indicated in our reply to you on 16 November
2015, essentially the same.  It would be unreasonable and inappropriate if
we on the one hand adhere to the provisions of the Ordinance and keep the
information on DIs confidential, yet on the other hand disclose the
information on DIAs.  This would also violate the agreement or consensus
between this Office and the organisations/persons concerned on
confidentiality of information.  This would not only jeopardise the trust
of those organisations/persons in this Office, but also adversely affect
our future investigations.

5.                As a matter of fact, our refusal to disclose information
on our DIAs, such as the topics of DIAs and the Government departments
and/or public organisations involved that you requested, is in keeping
with the reasons for refusal to disclose information as stated in
paragraph 2.9(c) of the Code        

6.                In view of the above, if this Office were to disclose
lightly to the public information about our DIAs (even if it might only be
the departments/organisations involved and the topics of our inquiries),
the trust that the departments/organisations concerned have on us would be
jeopardized because they would not have expected such information to be
disclosed.  In case we lose their trust, we will not be able to get their
full cooperation in our future investigations/inquiries.  This is exactly
the kind of situation described in paragraph 2.9(c) of the Code.

7.                We have reviewed in recent years our disclosure of
information regarding our DIAs.  To allow public access to more
information on our work and achievements regarding DIs, we will further
conduct DIs as far as possible on completion of our DIAs and, subject to
the restrictions under the Ordinance, publish the DI reports where The
Ombudsman deems it to be in the public interest to do so.

8.                This Office, therefore, maintains our original decision
on your request for information.

 1. Paragraph 2.9(c) of the Code states that: a department may refuse to
disclose information if the disclosure of which would harm or prejudice
the proper and efficient conduct of the operations of the department.

Yours sincerely,
( Kathleen Chan )
for The Ombudsman

From:        stranbusel <[FOI #49 email]>
To:        FOI requests at Office of The Ombudsman <[Office of The Ombudsman request email]>,
Date:        03/01/2016 23:32
Subject:        Internal review of Freedom of Information request - Direct
Investigations and Direct Investigation Assessments

show quoted sections

Please use this email address for all replies to this request:
[FOI #49 email]

Disclaimer: This message and any reply that you make will be published on
the internet. Our privacy and copyright policies:
[2]https://accessinfo.hk/en/help/officers

If you find this service useful as an FOI officer, please ask your web
manager to link to us from your organisation's FOI page.

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References

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2. https://accessinfo.hk/en/help/officers