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Section 16 Manual

Stage Three (cont'd): Investigation - Report of the Ombudsman

Structure of the (Draft) Report

When the interviews have been completed and the matters arising clarified, the investigating officer will prepare a draft investigation report. Generally, the report will comprise the following elements:

(i) The Complaint

This is the statement of complaint as outlined to the body at the beginning of the investigation. Where necessary, relevant background detail of the complainant's circumstances, and dealings with the body complained of, may be included.

(ii) Preliminary Examination

It is necessary to give a brief overview of the course of the preliminary examination in order to explain the reasons underlying the decision to investigate the complaint.

(iii) Legal and Administrative Background

The legal and/or administrative background to the decision, scheme or administrative procedure, the subject of the complaint, should be outlined. Normally, this will involve an explanation of the legal basis and/or of the administrative rules on which the action is based. If the Ombudsman has obtained legal advice in relation to the case, this should be referred to at this point.

(iv) Investigation

This section will usually commence with the response from the body to the notification of the investigation. The key issues in the investigation should be identified and evidence/arguments put forward by each side (the complaint and the body) presented under a heading for each of the issues identified. At that stage the presentation of the evidence/arguments is entirely objective and will not include comments or conclusions concerning the merits of the case or the validity or otherwise of actions taken by any individual.

(v) Analysis

In this section of the report the evidence is evaluated and conclusions drawn in relation to it. It will not always be possible to draw definitive conclusions in relation to all matters probed in an investigation; there may be conflicting arguments on particular matters in which case the Ombudsman can do no more than report on them. Conclusions should be balanced, fair and objective. In arriving at the conclusions regard should be had to the Ombudsman'sGuide to Standards of Best Practice for Public Servants which includes the basic principles of good administration. The conclusions should also have regard to the seven headings of maladministration set out in Section 4(2)(b) of the Ombudsman Act, 1980.

(vi) Findings

The findings of the Ombudsman are based on the evidence and conclusions and, where appropriate, each finding should be specifically linked to one or more of the seven headings of maladministration set out in Section 4(2)(b) of the Ombudsman Act, 1980. The findings should be clear, concise and flow logically from the analysis of the evidence and conslusions presented.

Circulation of Draft Report

The draft report should be referred to the Director General for his/her consideration who, in turn, will refer it to the Ombudsman, where appropriate. When a draft has been agreed, regard must be had to the provisions of Section 6(6) of the Act. This provides that " the Ombudsman shall not make a finding or criticism adverse to a person in a statement, recommendation or report under subsection (1), (3) or (5) of this section without having afforded to the person an opportunity to consider the finding or criticism and to make representations in relation to it" to him/her. A decision must be taken as to whether the entire draft of the report, or extracts from it, should be made available to any individual for his/her consideration at this stage. If more than one individual is criticised in the draft report, they should be given the relevant extracts (relating to themselves) rather than a full copy of the draft report.

When any comments and representations from individuals have been received and considered the body itself will also be entitled to an opportunity to make representations to the Ombudsman where it is proposed to make a finding or criticism adverse to it. The draft report, amended if appropriate to take account of the comments already received from individuals, will be sent to the head of the body for consideration.

The draft report being circulated will not include the Ombudsman's recommendation in the case. Care should be taken to ensure that the draft report, or extracts from it, is clearly stamped "Draft Only" where it is being circulated to relevant persons.

Completion of the Report

Where a draft report includes a finding or criticism adverse to a person or persons the investigation report may not be completed until the body and/or individuals concerned have been afforded an opportunity to make representations. When this procedure has been complied with, the investigating officer should complete the report -having considered whatever representations have been made. If any new arguments or facts arise at this stage, they must be given full consideration.

Where appropriate, a paragraph should be inserted in the completed report to indicate that the requirements of Section 6 (6) have been met. The final report to the head of the body will, at this stage, include the recommendation of the Ombudsman.

In accordance with the provisions of Section 6(2), written statements of the results of the investigation should also be sent to the persons mentioned therein.

The final report should be sent to the head of the body and a response requested to the recommendations within two weeks.

If the Ombudsman is of the view that the response of a public body to recommendations contained in an investigation is not satisfactory he/she may present a report on the matter to each of the Houses of the Oireachtas under Sections 6(5) and 6(7) of the Ombudsman Act, 1980.

If it is decided to make a report to the Houses of the Oireachtas, the persons/bodies specified in the following section (Notification of the Results of Investigations) should also be informed.

Notification of Results of Investigations

If the Ombudsman is satisfied with the response of the body to the recommendations in the investigation report, a copy of the report or a statement of the results of the investigation, as appropriate, will be sent to the complainant. The complainant should also be informed of the response of the body to the Ombudsman's recommendations. Normally, the complainant will be given a copy of the entire report.

In the case of a body which has a reporting relationship with a Department of State, that Department will be given a copy of the investigation report or a statement of the results of the investigation, as appropriate. In certain circumstances it may also be appropriate to notify other bodies.

Care should be taken to ensure that a person who is alleged to have taken or authorised the action which was the subject of the complaint, receives a copy of the investigation report.

Publication of the Report

Depending on the overall significance of the report, consideration should be given to the possibility of publishing to the media the investigation report or, alternatively, a summary of the report. Where the report is to be published, whether in full or in summary form, care should be taken to protect the identity of the complainant if so requested. The complainant's name should be anonymised. In certain circumstances other drafting changes may be necessary to protect his/her identity.

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