Scottish Legal Complaints Commission says it will avoid FOI requests by stashing lawyers dirty complaints info with researchers. THE Scottish Legal Complaints Commission (SLCC) has responded to calls from a representative body & lobby group for lawyers to boycott a research project into complaints against Scottish solicitors, by assuring the legal profession that any data collected from law firms over how they deal with complaints from clients will AVOID Freedom of Information legislation (FOI) because the data gathered ‘will be held confidentially by a third party’ (in this case, a commercial firm of pollsters) and thus not subject to FOI requirements of disclosure.
Responding to a call by the Scottish Law Agents Society (SLAS) for solicitors to effectively not participate in the survey, reported by Diary of Injustice here : Consumers ‘locked out of debate’ as Scottish Legal Complaints Commission carries out yet more research on how solicitors handle complaints, the SLCC sought to alleviate concerns over complaints data falling into the hands of the media & FOI requests, stating : “While it is the case that the SLCC is subject to Freedom of Information (Scotland) Act 2002 (FOISA), it should be noted that information is being ingathered on a confidential basis by the researchers purely for the purpose of statistical analysis by them. Information from individual legal firms, or data that could identify any legal firms or individual practitioners, will not be passed on to the SLCC.”
The statement from the SLCC has been widely taken to mean it has signalled to the Scottish Law Agents Society that it’s plans for how the research is gathered and by whom, will deter any leakage of the complaints data to the media or to journalists, individuals or other solicitors making Freedom of Information requests for full disclosure of the research and how it will eventually arrive at any conclusions.
A spokesperson for the SLCC added : “The SLCC sees this as a valuable piece of research which will inform all of our stakeholders, including both the profession and consumers, about how complaints are being dealt with. In particular, the results of the research will inform the SLCC when issuing guidance to the profession on hw practitioners deal with complaints made to them – this is one of the SLCC’s statutory functions contained in Section 40 of the Legal Profession & Legal Aid (Scotland) Act 2007.”
The spokesperson continued : “Prior to engaging the researchers, the SLCC discussed the research with the Law Society of Scotland and the Faculty of Advocates, both of whom agreed to assist the SLCC in conducting the research. In terms of funding, the cost of the research was included in the SLCC’s budget for last year – ie the budget approved in April 2011. It therefore has no impact on the budget recently approved for the forthcoming year, nor has it an impact on the level of next year’s levy.”
A legal insider confirmed to Diary of Injustice this morning, the new research being carried out by the SLCC was discussed with the Law Society of Scotland & Faculty of Advocates. He indicated that “steps had been put in place to see none of the complaints research data leaks out to the press, consumers or clients of solicitors.”
Diary of Injustice further asked the SLCC what its intentions were if the effective boycott of the research by SLAS resulted in a lack of solicitors or law firms participating in the project, after SLAS released a lengthy tirade against the research plans earlier this week, claiming : “The Scottish Legal Complaints Commission has written to solicitors’ firms requesting disclosure of information regarding complaints made against firms by clients and, presumably, other interested parties. It is always a matter of great difficulty for solicitors to disclose to third parties information derived from their clients’ files. There is an instinctive reaction to treat clients’ information in the same way that clients’ money is treated and to regard it as not being at the disposal of third parties. There is also the issue as to the privacy of the solicitor’s own business information. When we sought the views of a number of experienced practitioners and advisers as to whether this information should be supplied to SLCC, the immediate response was unanimously negative.”
SLAS went on to list 10 points concerning the SLCC’s complaints research project, among them suggesting a delaying action, and also advising member solicitors they had no obligation to hand over complaints information to the SLCC.
The SLCC responded to the SLAS statement, confirming it had no powers of compelling solicitors to take part in the research. The SLCC spokesperson said : “In respect of your questioning concerning solicitor participation, the SLCC is confident that it shall receive helpful contribution from solicitors when conducting its research into complaints. While the SLCC does not have the power to compel solicitors to take part in the research, we aver that most will consider the results of this research to offer valuable guidance to the profession on how practitioners deal with complaints made to them.”
Late yesterday, a senior Scottish Government insider indicated his displeasure of the way in which the Scottish Legal Complaints Commission was seeking to cover up complaints data from the public. He said : “Earlier this week the Chair and the outgoing Chief Executive of the Scottish Legal Complaints Commission used the media to publicly criticise the Scottish Government for not prioritising the SLCC or allowing it leeway to work within its legislative framework, which they also condemned as being badly written, complicated and costly to operate. Now they are telling lawyers they don't need to worry about their complaints data being made public because the SLCC, a body which is FOI compliant is going to have someone else hold the data so it can avoid any FOI request for its disclosure ? These people don't know if they are coming or going.”
A report on the media interview in which Jane Irvine, the Chair of the Scottish Legal Complaints Commission, and the SLCC’s now former Chief Executive, Rosemary Agnew, criticised the Scottish Government and the 2007 Legal Profession & Legal Aid (Scotland) Act, can be read in an article featured on law blog Scottish Law Reporter, here : After spending £14 million, legal complaints pair admit "We are crap and so is the law that created us" as one jets off to £80K position as FOI Chief
While Jane Irvine remains Chair of the Scottish Legal Complaints Commission, Rosemary Agnew has now left her position as the SLCC’s Chief Executive, replacing Kevin Dunion as Scotland’s new Information Commissioner, which was reported by Diary of Injustice earlier this year, here : SHHH HAPPENED : Scotland’s new Information Commissioner to be Legal Complaints CEO Rosemary Agnew, rebuked FIVE TIMES for being ANTI-FOI.
It is of course very difficult to have confidence in public bodies or regulators who are required to comply with Freedom of Information legislation to take such overt steps to ensure important information such as how solicitors deal with complaints is withheld from the public by using what can only be described as unfair and foul means to inhibit transparency & accountability. However, Diary of Injustice will follow this research project and report issues & developments relating to it in the public interest.
PLOY TO AVOID FOI : THIRD PARTIES USED TO STASH DATA FROM PUBLIC GAZE
Allowing ‘third parties’ to collect, collate or hold data on behalf of another is a popular device used by many public bodies including most Scottish Government departments, local authorities.
The tactic is also commonly used throughout NHS Scotland, Scottish Water, environmental regulators, most Ombudsmen, the Scottish Parliament, and throughout the justice sector including the Scottish Court Service right up to even the Lord President’s Office in an effort to avoid information falling into public hands via FOI requests using exemptions under Section 3(2)(a)(i) the Freedom of Information (Scotland) Act 2002, where data held by a third party on behalf of another is usually exempt from disclosure.