Freedom of information code - summary of adjudication

Issued by Richard Ayre, Law Society freedom of information adjudicator, on 13 December 2002

Issues

Whether the Law Society breached the freedom of information code by failing to respond within the appropriate timescales to a request for information and whether it acted in accordance with the code in declining to provide SJ Collins with much of the information requested.

Background

Mr Collins has been pursuing a complaint about a solicitor and about the Society's handling of that complaint since the late 1980s.

On 19 August 2002 he wrote to the chief executive, Janet Paraskeva, asking for 'all documents concerning the Law Society/SCB [Solicitors Complaints Bureau]/OSS [Office for the Supervision of Solicitors] concerning my original complaint in 1989 to date' as well as 'all council meetings and minutes appertaining to the 1974 Solicitors Act, section 36' and some further material going back to 1994.

On 4 September, the Society told Mr Collins his request was 'receiving attention'.

On 17 October, Ms Paraskeva apologised for the delay but offered him no explanation for it.

In respect of his request for all documents concerning his 1989 complaint, she declined, saying the file contained information falling within section B.3.2 of the code.

In respect of Mr Collins's request to see 'all council meetings and minutes appertaining to the 1974 Solicitors Act, section 36', Ms Paraskeva refused, citing section B.3.10 of the code and saying it would involve disproportionate use of staff time.

She also declined to let him have one of the two letters he had requested, on the grounds that it was covered by professional privilege, as provided for in section B.3.7 of the code.

Mr Collins sought adjudication on whether the Society had responded within the required timescale, and in subsequent submissions he questioned the appropriateness of the Society's interpretation of the code in denying him the information he sought.

Adjudication

Mr Collins has a long-standing dispute with the Society.

It is one test of the Society's commitment to openness and accountability that it should handle requests for information from potentially hostile members of the public as fairly as it would in the case of a casual enquirer.

In dealing with a dissatisfied correspondent such as Mr Collins, it is particularly important for the Society to be seen to apply the procedures outlined in the freedom of information code rigorously.

Did the Society breach the provisions of section H of the code in respect of the timescale of its responses? Mr Collins's letter was received by Ms Paraskeva's office (according to a date stamp) on 21 August.

The Society's acknowledgement was dated 4 September - 14 days later, and therefore just in time to comply with section H.1 of the code.

The Society's substantive response was not sent to him until 17 October, two months after his request.

In this respect, the Society clearly failed to comply with the 28-day deadline laid down in section H.6 of the code.

It must have been apparent to the Society by mid-September that it was not going to comply, and at least it could have mitigated its impending breach by writing a holding letter to Mr Collins, offering a realistic assessment of when he might expect a substantive reply.

However, I have considerable sympathy with the Society's argument that complex requests for information - especially when they come from a requestor with a history of litigation against the Society - may take longer to process than simple requests.

At the end of this adjudication, there is a recommendation for a revision to the code arising from this case.

Did the Society act in accordance with the code in refusing to give Mr Collins access to all documents from 1989 onwards relating to his original complaint? In declining to provide this information, the Society cited section B.3.2 of the code because the file 'contains information...

held in connection with a specific complaint to the OSS'.

Mr Collins noted Ms Paraskeva's use of the word 'contains' and argued that it should have been possible for the Society to delete any such information before allowing him access to the remainder of the file.

However, this argument is at odds with his original request, which was specifically for 'all documents concerning...

my original complaint' - in other words, by definition all the documents he had asked for were covered by section B.3.2.

The Society is not prevented by the code (as it would be, for instance, in the case of certain personal data) from making disclosure; the code merely gives the Society the right to decline to do so, and in this case Ms Paraskeva chose to exercise that right.

Nonetheless, in doing so, she acted within the provisions of the code.

Did the Society act in accordance with the code in refusing to give Mr Collins access to all council minutes relating to section 36 of the Solicitors Act 1974? I have examined at random some of the bound volumes of minutes for the early 1990s and some of the as-yet unbound minutes from later years.

The indexing system varies over time, and references to discussion of the compensation fund are indexed under a variety of different headings.

In later years, the material has not been indexed at all.

In addition, as the Society pointed out, there is no distinction between confidential and non-confidential material, and it would therefore be necessary in each instance to identify the relevant entry, assess whether or not it should be made publicly available, and then make a copy of it before it could be presented to Mr Collins.

It is easy to understand why the Society regards as disproportionate the effort required to go back through 28 years of material on what looks like a fishing expedition by Mr Collins, and the Society is clearly within its rights under section B.3.10 to decline to do so.

It is important to note that it is the scale of the task, not the fact that it involves records pre-dating the introduction of the code, which justifies the Society's position.

In the event that a future request were to be confined to the minutes of a particular meeting, however long ago, it would seem unlikely that the effort involved would be so disproportionate as to enable the Society to rely on section B.3.10.

However, for the avoidance of doubt it may be helpful to point out the corollary - namely that an unduly long series of separate one-off requests for information might in some circumstances entitle the Society to decline to comply on the grounds that it would involve disproportionate time and expense to do so.

Did the Society act in accordance with the code in refusing Mr Collins access to a legal opinion from Bindman & Partners? Ms Paraskeva argued that one of the letters sought by Mr Collins constituted an opinion covered by legal professional privilege.

Having seen the document, I am satisfied that the Society was within its rights under the code in declining to release it.

Recommendation for the code

Although the current 28-day period for compliance appears adequate in most cases, there will be occasions when the Society may reasonably fail to comply within that time.

Although there is currently a provision in the code whereby a requestor may agree to extend the deadline, there is no provision in the event of a failure to reach such agreement.

It is suggested that the code might properly include a provision along the following lines: H.7 Where the Society believes it cannot give a substantive response to a request for information within the 28-day periods referred to H.3, H.4 and H.5, it shall write to the requestor giving its reasons for a delay and its estimate of when the response will be provided.

It should copy this letter to the adjudicator, who will report annually to the council on the incidence of such delays.

The requestor may appeal direct to the adjudicator in the event that the reason for the proposed delay appears inadequate or the extent of it appears excessive, and the adjudicator shall then determine the deadline by which the Society shall provide its substantive response.

- Copies of the full adjudication are available from Bob Stanley, the Information Compliance Manager at the Law Society, tel: 020 7320 5629; fax: 020 7316 5766; e-mail: bob.stanley@lawsociety.org.uk