FoI adjudicator accuses SRA of putting profession before public

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9 March 2015

SRA: should not give confidentiality assurances

SRA: should not give confidentiality assurances

The Law Society’s outgoing Freedom of Information adjudicator has told the Solicitors Regulation Authority (SRA) that it does not consider the public interest sufficiently in too readily refusing to release details of its investigations.

In his parting shot after 14 years in the independent role, Richard Ayre said “it cannot simply be asserted… that releasing the details of an investigation would be ‘unfair to those we regulate’, unless that unfairness can be demonstrated and, in addition, unless any unfairness appears to outweigh the public interest in disclosure”.

Section 14.5 of the Law Society’s freedom of information code – which covers the SRA – allows the society to withhold information about the SRA’s regulatory investigations. However, before doing so, the society, or the SRA, must apply a public interest test.

In a postscript to his final adjudication, Mr Ayre said: “It is simply not the case that investigations are ‘confidential in nature’, as the SRA told the applicant in this case. They may remain confidential if, but only if, the public interest in withholding them exceeds the public interest in disclosing them…

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“In my view, disclosure of the results of an SRA investigation would necessarily be unfair to those investigated only if they had been given an assurance of confidentiality, and no such assurance, explicit or implied, should ever be given, because the FoI code requires publication on request if the public interest is in favour of it.

“As I have said on several occasions over the past 14 years, solicitors should be required to co-operate with an SRA investigation because they are regulated by the SRA, not because the SRA assures them of confidentiality.”

Mr Ayre stressed that regulation of the profession, including self-regulation, is “first and foremost to protect the public interest”.

He concluded: “That it should be rigorous, and seen to be rigorous, is part of a process to give the public assurance that solicitors are accountable. If the public feel assured, the profession itself benefits. But it is the public interest that should come first.”

In the case before him, the former client of a law firm who claimed he was the victim of its fraud and/or negligence was seeking to overturn the decision to redact part of the information the SRA provided, which he said was needed to support a claim he was making against the firm.

Mr Ayre found that though the redactions were “substantial in volume”, almost all of them related to two cases in which the applicant was not involved.

“In each of the three cases, the report includes personal data (names, addresses, and sums of money paid by individuals) which appear to me to constitute personal data, the release of which under the FoI code would be prohibited.”

He dismissed the argument that the unredacted report was required both by the police and the affected parties’ solicitors. “The police clearly do not rely upon FoI to obtain information required as part of any criminal investigation,” he said.

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