Letter to Mr Simon Burns MP from the Deputy
Parliamentary Commissioner for Administration
You wrote to the Parliamentary Ombudsman on
28 January enclosing a letter and supporting papers from Pamela
Taylor, the Chief Executive of Water UK, who complains that the
Office of Water Services (Ofwat) refused to release information
which should be made available under the Code of Practice on Access
to Government Information (the Code).
As I understand it, Pamela Taylor complains
that Ofwat, who have developed a financial model to help them
review price limits for water utility companies, have refused
to run this model using a trial set of data supplied by Water
UK. She contends that Ofwat's refusal to test the model in this
way is inconsistent with an undertaking given by the Director
General of Ofwat about making the pricing review process open
and transparent.
I have considered carefully the papers which
you forwarded but I am sorry to say that, for the reasons given
below, I do not see in them a basis for an investigation by the
Ombudsman.
The Ombudsman is able to consider complaints
that bodies within his jurisdiction, including Ofwat, have refused
to release information held by them. It seems to me, however,
that this complaint is essentially about the merits of Ofwat's
decision not to run the trial rather than about a refusal to release
information. Under section 12(3) of the Parliamentary Commissioner
Act 1967, the Ombudsman is expressly precluded from questioning
the merits of discretionary decisions taken in the absence of
maladministration and Ofwat's decision in this case would appear
to come into that category.
I think Water UK recognise that the matter rests
on whether or not Ofwat's decision not to run the test was inconsistent
with any undertaking they have given about being open and transparent.
There seems to have been such a general undertaking; and the papers
which you forwarded show that Ofwat acted in the spirit of that
undertaking when they published information about the financial
model in the "rule book". I think it would be very difficult
to argue successfully, therefore, that Ofwat have failed to be
open and transparent, even though they turned down Water UK's
particular request. Water UK's disagreement with Ofwat's decision,
however strongly felt, is not in itself a basis for starting an
investigation.
I am sorry to have to send a reply which Pamela
Taylor will find disappointing, but I hope she will understand
why the Ombudsman is unable to help her.
8 February 1999
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