Law Society notices

Law Society freedom of information code - adjudication

Issued by Richard Ayre, the Freedom of Information Adjudicator, on 13 July 2002

The issue

Whether the Law Society's freedom of information code applies only where a person seeking information from the Society cites the code in making the request.

Background

The dispute arose out of a prolonged correspondence between a solicitor, Imran Khan, and the chief executive of the Society, Janet Paraskeva.

Mr Khan wrote to Ms Paraskeva on 7 January 2002 requesting information concerning the Society's handling of the Kamlesh Bahl affair.

Ms Paraskeva replied on 16 January.

In further letters of 28 January and 1 February, Mr Khan sought clarification of her answers or disputed whether she had provided adequate answers, and he added further requests for information.

Ms Paraskeva replied on 30 January and 7 February respectively.

On 11 March, Mr Khan wrote again citing for the first time the Society's freedom of information code and claiming that Ms Paraskeva's previous responses had 'fallen well short of the standards set in this code'.

He invited her either to provide the information he wanted, some of which he said she had failed to supply despite previous requests, or to tell him under which provision of the code she proposed to withhold that information.

Ms Paraskeva replied on 14 March saying that Mr Khan's 'previous requests for information ...were not made under the terms of the Society's code of practice on freedom of information.

However, now that you have requested information under the terms of the code, I must of course treat it as a request made under the code'.

She then itemised the information which she believed Mr Khan had requested and undertook to provide it within the 28 days the code requires or to inform him under which part of the code she proposed to deny him the information.

On 9 April, Mr Khan wrote saying: 'Your interpretation of the code would lead to the bizarre conclusion that it only applies when a person explicitly cites the code in their request for information.

'That cannot correspond either with the spirit or intentions of the Society's code nor the principles underpinning freedom of information generally.

The code clearly sets out the standards the Law Society will apply to all requests for information irrespective of whether or not a reference is made to the code in the request.'

Ms Paraskeva responded on 12 April saying that she was sorry Mr Khan had found her interpretation of the code bizarre and that if she had made any decisions under the code with which he disagreed he had the right to ask for them to be referred to the adjudicator.

On 19 April, Mr Khan asked Ms Paraskeva again to clarify the issue he had raised on 9 April, namely whether the code applied only when the person requesting information cited it.

He also made a range of additional requests for information.

On 25 April Ms Paraskeva wrote supplying further information but, in respect of the specific question about the applicability of the code, she said: 'I do not propose to get into a debate with you over its interpretation.'

Mr Khan repeated his question again on 2 May, saying that it was necessary to receive Ms Paraskeva's answer before he could consider whether or not to seek a reference to the adjudicator.

Ms Paraskeva replied on 8 May saying again that she was not prepared to enter into a debate over the interpretation of the code.

Noting what he called her 'failure to respond' to his request, on 13 May Mr Khan asked that the issue be referred to the adjudicator.

Accordingly the Society wrote to the adjudicator on 31 May seeking adjudication and enclosing copies of the correspondence between Mr Khan and Ms Paraskeva.

Submissions

Having read those exchanges, the adjudicator wrote to both Mr Khan and the Society on 15 June to say that, on his reading of the code, it was not within the adjudicator's remit to determine the question raised by Mr Khan.

However, since both Mr Khan and the Society had sought an adjudication, the adjudicator was prepared to consider the arguments and reach a conclusion.

He invited both Mr Khan and the Society to make written submissions to help him in his determination.

Mr Khan argued that the general principles of the code (articulated in section A) had led him to assume that the code itself would apply to any request made to the Society for information.

He said that if the code applies only when the requestor makes reference to it then the code itself needs to be amended to make that clear.

Mr Khan believed that Ms Paraskeva's attempt to differentiate between, and to establish a different process for dealing with, a request made under the code and one made without reference to it made a mockery of the Society's intention to be transparent and accountable.

The Society, in its submission, said that the code made clear, in section G.1, that requests for information must be made in accordance with the code, in writing, signed by the person making the request, and addressed to the chief executive.

The Society said that these procedural provisions were 'to ensure that information transparency does not descend into a chaotic free-for-all'.

The Society argued that the intention behind the code was not to replace all other avenues of disclosure which had existed before the code came into effect, but was a mechanism 'to ensure that an irreducibly minimum standard of disclosure is maintained' across the organisation so that 'if, for example, a person seeking information does not get satisfaction from other avenues, he or she will always know that the mechanism of a request to the chief executive under the code will exist'.

The Society argued that this was what happened with Mr Khan: he had failed to get satisfaction from the replies to his earlier requests and so, from 11 March onwards, he had made formal requests under the code.

Adjudication

The very fact that Mr Khan has felt the need to ask, and Ms Paraskeva was unwilling directly to answer, the question whether the code applies only when a person explicitly cites it in requesting information illustrates that the code itself lacks clarity on this point.

It was adopted by the council of the Society in October 2000 but it was first made generally available only when it was published on the Society's Web site in 2002.

Therefore, the code is largely untested (indeed this adjudication is one of the first to have been sought).

To arrive at a fair determination of Mr Khan's question, it is therefore necessary to look both at what the code does and does not say and at what the council may be thought to have intended when adopting it.

The first clause of the code (section A.1) says that subject to certain exclusions (which are not disputed in the current case) 'all information held by the Society shall be made available on request' and that 'no additional conditions....shall be placed on the supply of information in accordance with this code.'

Section G.1 (Procedure for requesting information) says that 'all requests for information in accordance with this code shall be in writing addressed to the chief executive, and shall be signed by the person making the request'.

In this clause the term 'in accordance with this code' is somewhat ambiguous.

The Society appears to regard it as meaning that, for the provisions of the code to apply, a specific request must be made for the release of 'information in accordance with the code'.

Mr Khan appears to regard it as meaning that, in order to accord with the code, any request for information must simply be made in writing to the chief executive.

This difference in interpretation may account for the various disagreements between Mr Khan and Ms Paraskeva about the precise application of the code.

Ms Paraskeva regarded Mr Khan's first reference to the code in his letter of 11 March as triggering the application of the procedures outlined in section H (handling of requests for information).

Mr Khan, on the other hand, having as he saw it complied (albeit perhaps in ignorance at that time of the existence of the code) with the requirements of section G ever since his first letter of 7 January (by addressing his requests for information to the chief executive in writing) was puzzled by her assertion on 14 March that she had not treated his previous requests as being covered by the code.

Unfortunate though their difference of interpretation was, it is uncertain whether there were any practical consequences as a result of it.

Mr Khan expressed the view in his letter of 11 March that Ms Paraskeva's previous responses (made before she apparently believed that the provisions of the code applied) had fallen well short of the standards set by it.

However, it appears that on each occasion she had responded to his requests well within the deadlines set by the code and that in relation to those items which she declined or was reluctant to disclose there is a prima facie case that they fell within the exceptions to disclosure listed in section B.

The mere fact that Mr Khan was dissatisfied with the form or extent of the answers to his letters prior to 11 March does not of itself mean that they fell short of the standards set by the code.

The Society will often have to judge in what level of detail to respond to a request for information even if none of the exceptions in the code applies, and a requestor will always have the right to respond with a further request if what has been supplied appears to be inadequate.

This is what Mr Khan did repeatedly in his correspondence both before and after his first reference to the code on 11 March.

Whether or not Ms Paraskeva would have handled the requests differently had the code been cited right from the start of their correspondence, it is clearly desirable that the code itself should be unambiguous about the extent and circumstances of its application.

Therefore, the question remains to what extent the various provisions of the code should apply irrespective of whether or not someone seeking information cites it.

In answering this question it is necessary to apply common sense, to consider the practical implications, and to take a view about what the council may be thought to have intended when adopting the code.

In any complex organisation such as the Society, information will be sought by and provided to both members and outsiders at a multiplicity of levels and in a variety of formal and informal ways.

It can never have been intended that the freedom of information code would seek to impose a new bureaucracy upon all the normal channels of communication between the Society and its members or between the Society and members of the public.

It is clear that the provisions of the code relating to the procedure for requesting information (section G) and the handling of those requests (section H) should not be held to apply to all requests made to the Society for information of whatever sort.

It would be absurd if every such request had to be made in writing to the chief executive.

It would also, incidentally, mean that everyone who ever made a request to the Society for information of any kind would be liable to be charged a fee in accordance with the provisions of section H.

To that extent at least it is clear that the code cannot be held to apply in its entirety every time anyone asks the Society for information.

On the other hand, the council's decision to adopt a code must have been intended to signal a general commitment by the Society to openness.

Clearly it is not only the chief executive who should have regard to the provisions of the code when deciding what information to provide to someone who requests it.

It would be a matter of concern if, on a regular basis, requests at a lower level in the organisation were to be met with a lower level of disclosure than would apply were the request to be made again, citing the code, to the chief executive.

A working knowledge of the code, and of the principles which underlie it, is therefore necessary throughout the organisation, though delicate judgements relating to matters which might fall within the exceptions in section B will generally need to be taken at a senior level, and the Society will need to have systems in place to ensure the effectiveness of the referral and decision-making processes.

The Society argues that the code is intended to offer a channel through which people who feel they have not been supplied with the appropriate information in an earlier enquiry to the Society can be assured of receiving an irreducible level of information by writing to the chief executive.

In that sense, the code offers an important route of appeal to the chief executive against an inadequate application of the principles of openness lower down the organisation.

But there is no suggestion in the code that it is intended to apply only where an applicant has previously tried and failed to secure the information sought.

The ability of an applicant to write to the chief executive in the first instance must also be respected.

That being the case, the question therefore remains whether people who write to the chief executive, either in the first instance or as a result of a frustrated attempt to secure information through other means, need to cite the code in order to expect it to be applied by the chief executive in her reply.

It would seem very curious if the chief executive were to answer identical letters with differing degrees of candour, or were to levy or not levy a charge for doing so, depending on whether the writer had or had not used the magic words 'freedom of information code'.

Therefore, it seems to follow that the chief executive should treat requests for information which are written to her as constituting requests under the code.

The conclusion is that the council of the Society is recommended to amend the code to provide for the following:

l That the general principles embodied in sections A and B apply to the provision of information by the Society at whatever level and by whatever means;

l That people who have requested and feel they have been denied the information to which they are entitled under section A as qualified by section B should write to the chief executive in accordance with section G, citing the code and their reasons for being dissatisfied;

l That all 'first instance' requests for information written to the chief executive should be treated as requests made under the code irrespective of whether they cite the code;

l That the chief executive should use her discretion in determining whether or not to require the payment of the fee referred to in section H, and that no fee should be levied unless the Society needs to incur significant and quantifiable expense or effort in order to provide the information required.

Summary

In the literal sense, it is not the case that the full provisions of the code apply to all requests for information made to the Society irrespective of whether the code is cited by the person requesting the information.

Requests for information are made to, and information is provided by, the Society through various channels at every level without the need for the provisions of sections G and H to be observed.

Nonetheless, the principles underlying the code, expressed in sections A and B, do or should apply to all requests made to the Society irrespective of whether the person requesting the information cites the code.

People who feel they have been denied information which they believe they are entitled to should write to the chief executive citing the code and their reasons for being dissatisfied.

The chief executive should regard written requests to her for information as being requests made in accordance with the code.

For reasons of clarity, the council is recommended to amend the code in the ways outlined above.