This request is now being handled by the SRA.

On 22 February 2018 the SRA provided the following response:

"In response to point 1 of your request: The matter referred to in our response dated 18 August 2017 is a matter that has not yet been resolves [sic] and remains with the Adjudicator at this time. We therefore do not currently hold the information to respond to this section of your request.

In response to point 2 and 3 of your request: Please find attached our response letter to the request in question. I have redacted the letter in line with the data protection act."

The substantive text of the attachment (which is a letter sent by the SRA on 24 February 2017, in response to request FOI/SRA/0192) reads as follows:

"Please may I know the dates from 1st January 2005 onwards when the SRA has been in contact with [name redacted by SRA], seeking [possessive pronoun redacted by SRA] response to any potential regulatory issues, and stating:-
(1) the date of each SRA enquiry
(2) the nature of any regulatory issues raised with the member
(3) the outcome thereof
This is a fair request because the information is of public interest since it reveals the extent to which a member has been approached about regulatory issues and where
they have had to respond and may have taken measures to avoid enforcement."
Our response:
The information that you have requested is exempt under Section 14.5 (Regulatory Function) and Section 16 (Personal Data) of the SRA's Freedom of Information Code of Practice.
Section 14.5:
The SRA as regulator has an established mechanism for publishing upheld complaints made in regards to firms/individuals. We do not think that there is a wider public interest in publishing all regulatory correspondence and/or non-upheld complaints. Any such release could provide an incomplete and/or inaccurate picture of a firm or individual, and may lead to wider misrepresentation of those we regulate.
Furthermore, we find that it is in the public interest to maintain confidentiality, as it encourages the free and frank exchange of information from third parties to the SRA, without which the SRA could not perform its statutory functions. More information on our publication policy and the types of decisions that are published can be found on our website:
http://www.sra.org.uk/consumers/solicito...
Section 16:
Correspondence between the SRA and [name of solicitor redacted by SRA] would also contain [possessive pronoun redacted by SRA] personal data. When considering the release of any such information we have to consider the Data Subject's rights under the Data Protection Act (1998).
It is our view that disclosure of the personal information held would breach the first data protection principle, which states that personal data should be processed fairly and lawfully. Therefore, we have found that Section 16 of the Law Society's Code applies.
I am sorry that I have not been able to help you further in this matter.
If you are not satisfied with this response, you can ask for an internal review. If you
would like to request a review, please write or send an email within 14 days of the
date of this letter.
A member of staff who was not involved with the original request will conduct the
internal review.
Please quote the reference number FOI/SRA/0192 if you decide to contact us further
in regards to this matter."

On 23 February 2018 the SRA responded as follows:

"As you are not satisfied with my response I have escalated this matter for internal review.

We aim to complete internal reviews within 20 working days.

We will therefore issue our formal response to you in this matter by 23 March 2018."

On 27 February 2018 the SRA responded as follows:

"Our internal review response time frame is based upon paragraph 84 of the ICO’s Section 45 - Code of Practice – request handling:

'In any event an internal review should take no longer than 20 working days in most cases, or 40 in exceptional circumstances.'

The full guidance document can be found at:

www.ico.org.uk/media/for-organisations/d...

We will therefore complete our review and respond by 23/03/18 as outlined in my last email.

I also note you have requested the following:

'So that I (and other members of the public who make information requests) may understand the review process which you intend to follow, please send me a copy of any internal guidance which the SRA has issued about how and by whom such reviews are to be conducted.'

We will respond to this separately under reference TC/2018/034. We will also respond to this new section of your request by 23/03/18."

On 6 March 2018 the SRA sent the following email:

"Please find attached the relevant internal guidance in regard to Transparency Code requests, which I am disclosing as a response to the request handled under reference TC/2018/034.

In response to the following section of your email of 27/02/2018:

'Please now tell me who is going to conduct the review process and whether that person drafted the letter to me dated 22 February 2018 or saw that letter before it was sent. Plainly, the review process cannot be conducted by anyone who had any involvement in that letter.'

Your request for an internal review of my response under reference TC/2018/007 has been escalated to my manager and the review response will address the points you have raised."

On 7 March 2018 the Law Society sent the following email:

Dear Mr Bullimore

Thank you for your email of 24 February 2018.

This matter is being dealt with by the SRA under its Transparency Code as is appropriate for requests for information held by the SRA.

This office will not be responding to any further correspondence on this matter.

Yours sincerely

Bob Stanley

Information Compliance Manager

Risk and Assurance Team

On 7 March 2018 the SRA sent the following email:

Dear Mr Bullimore,

We respond to requests under the Transparency Code by responding in the medium and to the address from which we receive the requests. We will not be uploading our responses to whatdotheyknow.com or any other websites.

During an internal review we would consider all the correspondence from the requester in question. Therefore, you can if you wish supply further information in the form of written representations and these will be considered as part of the review.

The internal review process is a reconsideration of the request by a member of staff who has not involved with the original decision, we will not be providing written representations.

As stated in my previous email our response deadline for this internal review is 23 March 2018.

Kind regards

Charlie Smith

Information Governance Officer

Solicitors Regulation Authority

On 13 March 2018 the SRA sent the following email:

Dear Mr Bullimore

Thank you for your email, below.

As previously stated, we respond to requests under the Transparency Code by responding in the medium and to the address from which we receive the requests.

We will not be uploading our responses to whatdotheyknow.com or any other websites.

The review will be conducted by Andrew Turton, Head of Risk and Information Governance. Please send any further submissions to this email address.

Absolute limitation 5 is the limitation relied upon in this request - personal data which if disclosed would breach the Data Protection Act 1998.

The remainder of your questions are matters for the internal review. The review will consider whether the application of the limitation was correct.

Kind regards

Petra Wiltshire

Petra Wiltshire
Information Governance and Compliance Manager
Solicitors Regulation Authority

On 23 March 2018 the SRA sent the following letter:

Dear Mr Bullimore

Information request – Internal Review TC/IR/2018/007

I am writing in response to your request for internal review.

Internal review purpose

The intention of an internal review is to consider the actions taken in processing the requests and consider any restrictions or limitations.

I have considered the points raised in your email of 23rd February and subsequent emails to SRA Information Compliance Team. I note your emails dated 24th February, 27th February, 6th March, 7th March, 14th March and 20th March requesting further details regarding the process to be followed and additional questions regarding the original decision.

Handling of your request

You requested the following information:

“In June 2017 I asked how many adjudications (other than 0096) were in progress. In response (TC/2017/077, 18 August 2017), I was told that "there is currently one case that is opened with the Adjudicator". The relevant parts of that response are set out at the end of this email.

Please send me the following information:

1. The outcome of the matter which I was told was with the Adjudicator at 18 August 2017. If the adjudication did not proceed or there was no decision from the Adjudication, why was that?

2. The text of the request(s) which gave rise to that referral to the Adjudicator.

3. The text of the response(s) given to the request(s), with a copy of any information which was disclosed in response to the request(s).”

The information you requested was provided on 22 February, in keeping with the required timescales. The name of the requester and the name of the solicitor who was subject of the initial request was redacted from this letter.

The response you received should have identified the relevant limitation and explained why this applied. The limitation being relied upon was identified in the response to you of 13 March. The remaining questions were considered relevant to the internal review and have been passed to me to consider.

As part of this review, I have considered the limitation and concluded that it was correctly applied. In determining whether to disclose personal data, we need to be satisfied that it is both fair and lawful to do so (the first data protection principle). To this end, the following context is important:

• The name of the solicitor has not been made publicly available by the SRA in the context of the request
• The name of the solicitor has not been made publicly available by the requestor (for example, by submitting the request via whatdotheyknow.com)
• The request and response referred to are over 12 months old
• The request for adjudication has been withdrawn by the requestor

The adjudication process applied in this case was designed by the Law Society and it predates the creation of the SRA in 2007. Until early 2017 the Law Society dealt with all freedom of information requests made to both it and the SRA. The Law Society also represented both bodies in adjudications.

From January 2017 the SRA took over handling of its own requests and in March 2017 the Law Society's original 2006 Freedom of Information Code of Practice was abolished. At that point, both the Law Society and the SRA introduced separate Codes and both of those new Codes do away with the role of an Independent Adjudicator.

In reaching a decision, I have considered whether it be reasonable for us to release to you, to be included on a public forum, the name of an individual in relation to a third party’s request.

The name of the solicitor would not have provided any further relevant context should it have been released. Indeed, the very nature of the request, one that identified a specific individual, was of central relevance to the limitations that were engaged under the Transparency Code. The original request was of interest to the requestor, there was no wider public interest that would have been served through releasing the information requested, for the reasons outlined in that response.

Our approach to the publication of information relating to regulated individuals and firms is available here: http://www.sra.org.uk/consumers/solicito.... Your request was, in my view, satisfied by the information released.
I do not consider that it would be fair to the solicitor to have their name published, given that they have not been publicly identified to date. Identifying has the potential to cause unnecessary distress and there is no public interest that outweighs this. As I am satisfied that this aspect cannot be met, I do not intend to consider whether a lawful basis can be satisfied in reliance on schedule 2 of the Data Protection Act 1998 (given that the information considered is personal rather than sensitive personal data).

I note your points regarding previous responses where we have named individual solicitors. The requests you refer to were sent via whatdotheyknow.com. Responding to that public thread does not breach the DPA as their names were already in the public domain.

I note that you have also raised the point that responses under FOI are to the world at large. The approach the ICO takes in publishing decision notices, is that they redact the names of individuals who are subject to requests, as well as the requestors. This approach is mirrored in adjudication decisions previously published, identifying any third party individual solicitor or firm by initials or as the "named solicitor" or "named firm".

Relationship between The Law Society and the SRA

The Society is the representative body and approved regulator for solicitors in England and Wales. It is a body incorporated by Royal Charter, however its approved regulator status is derived from the Legal Services Act 2007. Under the Act, representative and regulatory functions are separated.

The information you requested is not held by the Society, it is held by the SRA which is why we have processed your request, in-line with our Code.

Interplay with the Data Protection Act

In keeping with the principle of regulatory independence, the SRA and the Society’s representative function maintain separate databases. Data is shared on a limited basis for limited purposes. Accordingly, one arm of the Society is not automatically privy to the data held and or processed by the other arm. The ICO’s guidance says that a data controller “determines the purposes for which and the manner in which any personal data are, or are to be, processed”. Given the statutory requirements for regulatory independence, the SRA and the Society (representative body) each determines the purposes for which and the manner in which each part of the organisation will process data except in a more limited extent where there may be facets of data for which each part of the Society could be said to be joint data controllers.

As the ICO guidance sets out that the data controller must be a legal entity the Law Society is the actual and legal data controller. Serious Data Protection matters relevant to both the SRA and TLS are dealt with jointly. Day to day procedural matters are dealt with independently, as are interactions with the ICO which are only relevant to either the SRA or the Society.

In terms of the points you have raised about consulting the Law Society as the Data Controller, this is not a required step in applying a limitation under the SRA Transparency Code.

My conclusion

I have had the opportunity to review our response to your request for information and the response that was provided to you. I have reviewed how the Information Officer dealt with your request and consider that our response was correct and issued to you with the timeframe specified by our Code. However, the response you received should have identified the limitation that was engaged and explained how this applies.

Yours sincerely

Andrew Turton
Head of Risk and Information Governance
Solicitors Regulation Authority

28 March 2018

Dear Mr Turton

TC/2018/007
____________________________________________________________________

1. I refer to your letter dated 23 March 2018.

General

2. It is disappointing to find that you have purported to conduct a review without involving me. As the correspondence records, I was waiting for the SRA to answer legitimate questions (set out in my email dated 7 March 2018) in order that I might understand its case and prepare written representations on a properly informed basis. You were aware of that fact and chose not to contact me before producing your letter. Ms Wiltshire failed to answer my questions and failed to give me your email address, presumably to prevent me from contacting you until you had produced your letter 23 March 2018. I still do not have your email address, because your letter was sent using the SRA’s generic “Information Compliance” email address. This pattern of behaviour - designed to prevent me from lodging written representations prior to the sending of your letter - is the antithesis of the openness promised by your Transparency Code. The SRA sets a poor example by conducting itself in such a manner.

The adjudication

3. You say that “the request for adjudication has now been withdrawn by the requestor”. It is curious that the adjudication - which must have been on foot for the best part of a year - should evaporate so soon after my request dated 25 January 2018. On 22 February 2018 Mr Smith told me that the adjudication “remains with the adjudicator at this time”. Thereafter, Mr Smith and Ms Wiltshire made no mention of the request for an adjudication being withdrawn. If it was withdrawn, it must have been withdrawn between 13 March 2018 (when Ms Wiltshire last emailed me) and 23 March 2018 (being the date of your letter). It seems a remarkable coincidence that the request for an adjudication was withdrawn during the period in which I was being excluded me from the review process and you were composing your letter.

4. The 2005/06 Code contained no provision for adjudication requests to be “withdrawn”. The established practice of the adjudicator was to produce a written decision even if the requester did not participate in the adjudication process: for five examples, see Beachcroft LLP (September 2008), PS (April 2012, where a decision was produced even though the requester described the adjudication process as a “nonsensical dance”), IT (March 2013), VB (June 2015) and MR (November 2015). That being so, please send me a copy of all correspondence relating to the making and withdrawal of the request for an adjudication in 0192. You are, of course, welcome to redact the requester’s name and contact details. If you insist upon redacting the name of the relevant solicitor, I do not object to that at this stage.

Your position

5. It is (as I am sure you are aware) wrong to suggest that the redacted information is held by the SRA and not the Society. The redacted information is the name of a solicitor. The Society holds the names of all solicitors (which names are a matter of public record); and the relevant name was included in an FOI response which was sent under the Society’s 2005/06 Code. Self-evidently, the name is information held by both the Society and the SRA: the SRA holds it only as the regulatory department of the Society (of which the SRA is part), while the Society holds it (a) for representative purposes, (b) as the approved regulator under the Legal Services Act 2007, (c) as the registered data controller, (d) as the organisation under whose 2005/06 Code the letter dated 24 February 2017 was sent, (e) as the organisation under whose 2005/06 Code the adjudication was requested and (f) as the organisation to which the adjudicator was contracted.

6. The request, response and adjudication in 0192 were all governed by the 2005/06 Code, which explained (in paragraphs 6 and 8) that:

“When it applies to the Law Society, the Act will require us to release information about our regulatory role. But we are happy to let you have information about our representative role too, so this Code applies to both, and we will treat requests for both in the same way.”

“The Code covers all information we currently hold, whenever it came into existence, and whether it is kept on paper or stored electronically. Information includes, for example, agendas, minutes or other papers prepared for our Council, Boards or committees, consultation documents, and reports.”

Paragraph 14.5 of the 2005/06 Code allowed the Society “not to release information if is about specific investigations, disciplinary cases or application arising from our regulatory role”.

In a paper written for the Society’s Corporate Governance Board on 21 February 2007, the Society’s General Counsel reiterated that “the Law Society is one legal entity” and that “freedom of information is a constitutional matter owned by the Council [of the Society].”

Thus, the adjudicator’s contract dated 24 March 2015 contained no reference to the SRA. By schedule 1 to the contract, his role was:

“…To adjudicate in cases where the Society [not the SRA] has declined to disclose information on the basis of its interpretation of the Code, and a person requesting information has challenged the Society’s [not the SRA’s] decision.

To determine whether the Society [not the SRA] has acted in accordance with the Code.”

Upon the termination or expiry of the contract, the adjudicator was required (by clause 3.5.1) to return “all documents, papers and other material of whatever nature provided by the Society [not the SRA]”.

Following the introduction of the new Codes in March 2017, the Society stated that:

“On 24 March, the Law Society of England and Wales launched its new information code of practice. The previous version had been in place since 2005 and predated the creation of the SRA. Our new code no longer covers regulatory issues as they are now part of the remit of the SRA which has developed its own code” (Legal Futures, 5 April 2017, emphasis added).
In the circumstances, it is inappropriate to assert that the redacted information (being the name of a solicitor, which was then recited in a letter sent under the Society’s 2005/06 Code) “is not held by the Society”. That is an assertion of fact. It is not credible and not correct. It should not have been made and should be withdrawn.
7. Further, as you appear to concede, the Society and the SRA are the same legal entity. It is a fiction to suggest that information held by the SRA is not held by the Society. Because the SRA has no legal identity of its own, information “held” by the SRA is held by the Society: see The Law Society [2015] EWHC 166 (Admin) and Blacker v Law Society [2016] EWHC 947 (QB) (where the Society, not the SRA, was correctly named as the defendant). By seeking to argue that the Society does not hold the name of a solicitor, the SRA does itself and the Society no favours. It is not acceptable for the SRA to ignore two High Court decisions (and the words quoted in paragraph 6 above) in order run such an obviously fallacious argument. Equally fallacious is your attempt to argue that the name of a solicitor (whose name and status as a solicitor are matters of public record) becomes non-disclosable personal data through being disclosed to the world at large in an FOI response issued under the Society’s 2005/06 Code.

8. Whether an FOI request is made inside or outside the whatdotheyknow website has no bearing on the fact that the response is treated as having been given to the world at large. That website is simply a tool to help members of the public make FOI requests. It functions as an online archive of requests and disclosed information (see West Berkshire DC FS50426750). The in-house style of the ICO’s decision notices is also of no relevance to this matter. The SRA/Society is not the ICO, the ICO is not subject to the regulatory objectives contained in the Legal Services Act 2007 and I am not asking for a copy of an ICO decision notice: I am asking for a copy of an FOI response, in which the SRA chose to name the relevant solicitor. You refer to the ICO, but have chosen to overlook the following point, which it makes in its online guide:

“Because you should treat all requesters equally, you should only disclose information under the Act if you would disclose it to anyone else who asked. In other words, you should consider any information you release under the Act as if it were being released to the world at large.”

You will find that, when faced with an unobjectionable FOI request relating to a solicitor, the ICO adopts a more candid approach than the SRA: it answers the request. For an example of this, see the ICO’s response to request IRQ0595687 (which was not made by me, but was disclosed to me by the ICO on 28 March 2018). The relevant parts of that response are set out at the end of this letter. As you will see, the SRA has not tried to redact the name of the relevant solicitor.

You will also find that the ICO’s disclosure log includes unredacted requests and responses which name particular individuals. Those responses - not the ICO’s decision notices, which are in the nature of appeals and are issued under a statutory power which does not apply to the SRA/Society - equate to the letter which you are wrongly trying to redact. For recent examples from the ICO’s log, see IRQ0698621 (subject: Arron Banks) and IRQ0689440 (subject: Vera Jourova).

In the light of the regulatory objectives and the better regulation principles, the failure of the SRA/Society to maintain any publicly accessible disclosure log is in itself poor practice. Given the relatively small number of FOI requests received by the SRA/Society, both of which have information compliance departments and claim to be committed to openness, the failure to publish such a log is inexplicable. The reluctance to display the promised openness has been further illustrated by the SRA’s refusal to conduct this correspondence through the whatdotheyknow website: it is discomfited by this matter (as is the Society, which refuses to reply) and would prefer the public not to see the correspondence. Absent any disclosure log, it is all the more important that the SRA/Society produce unaltered copies of previous FOI responses when asked to do so.

9. You mention the Society’s adjudicator, whose position disappeared when the SRA/Society abolished adjudications on 24 March 2017. As you know, the decision to abolish the adjudication process - which had existed for some 15 years - was made with no warning or consultation and without the knowledge of the Legal Services Board. Prior to doing away with adjudications in March 2017, the Society was on record as saying that “it is an important feature of the voluntary [FOI] scheme that Society decisions under the Code are subject to review by an independent adjudicator, in order to give credibility to the [Society’s] Council’s commitment to freedom of information” (Society’s FOI Adjudicator Sourcing Plan, October 2014). The SRA/Society had no compunction about scrapping that “important feature”, aimed at giving “credibility” to the Code, once the adjudicator had ruled against the Society in YZ (July 2015) and Fraser J had criticised the Society in the resulting litigation (that is, Blacker). Even before the introduction of the new Codes in March 2017, the SRA had adopted a practice of not telling requesters about the right to an adjudication under the 2005/06 Code (see, for example, the letter dated 30 January 2017 in 0178 (Ferris) and the letter dated 24 February 2017 in 0192).

10. The adjudicator conducted adjudications without any published rules and the Society’s website shows that, irrespective of anything contained in the Data Protection Act 1998, more than 20 of his decisions stated the names of individual requesters. I am not aware of any decision of the adjudicator in which he explained why unrepresented members of the public could be named but members of a regulated profession - who are Officers of the Court - should be anonymised. In the light of the Blacker case (of which your letter makes no mention), it is clear that any practice of attempting to anonymise solicitors - or failing to tell or consult them about adjudications which related to them - was at best misconceived. It was precisely such misconceived (and secretive) practices which resulted in the Society’s being sued (and deprived of its costs) in Blacker.

11. Your Transparency Code expressly excludes information held “jointly” by the SRA and the Society. For reasons which are not clear, there appears to be a desire to prevent my request dated 25 January 2018 from being dealt with by the correct organisation (the Society). I can only assume that the SRA wishes to deal with this matter because it has no faith in the Society’s ability to deal with FOI matters. Any such lack of faith would not mean that the wording of the Codes (or the fact that the letter was sent under the Society’s Code, with the resulting dispute then being referred to the Society’s contracted adjudicator) could be ignored.

Next steps

12. Please now deal with the points raised above and clarify whether the solicitor named in the letter dated 24 February 2017 was ever informed of the adjudication in 0192: the SRA has conspicuously failed to answer that question, which creates the impression that its objective is not to protect any third party’s interests (or prevent anyone from suffering “unnecessary distress”), but to ensure that the solicitor does not find out about the adjudication. Once you have done that, I will send the SRA written representations, so that an appropriate person within it can conduct a review in a manner which reflects the regulatory objectives and the principles of procedural fairness.

13. Unless it joins in your review, the Society (being the issuer of the Code which governs my request dated 25 January 2018) will then have to conduct its own review. That would be an unnecessary duplication of effort, so please now comply with paragraph 4.5 of your Request Handling Process Guidance (which your letter ignores) by ascertaining what the Society’s position is. I cannot ascertain its position: as you have seen, despite the criticisms made of it by Fraser J, the Society thinks it acceptable to inflame matters by refusing to reply to correspondence.

14. Consistent with paragraph 4.5 of that Guidance, please also consult the solicitor whose name has been removed from the letter dated 24 February 2017. A continued failure to consult that solicitor will reinforce the impression that the agenda is not to avoid causing distress to him/her, but to make sure that he/she does not find out about the letter dated 24 February 2017 or the resulting adjudication.

15. I would add that, while the solicitor in question might well be angry with the SRA/Society if the existence of the response and adjudication had been kept from him/her, he/she would have no cause to feel distressed by the mere fact that he/she was the topic of a non-defamatory FOI request. In order to make that unsustainable contention, you are choosing to ignore the decision in Blacker. As Fraser J explained (at [20]), being the subject of an FOI request under the Codes comes with being a solicitor whose name and status are matters of public record:

“Dr Blacker’s arguments, in summary, are that the information remaining still identifies him and that he would and does find that embarrassing, and if disclosure occurs it will unleash a torrent of adverse, embarrassing and misconceived comment, and cause mischief. However, his ultimate point is that the Law Society’s adoption of the Code in 2005, and behaviour as though the Act applies when it does not, is contrary to his rights in various respects. The first point may be right, but that does not grant him a cause of action in my judgment. In various public places, not least the website of JAFLAS, he is happy to be described as a solicitor and that is a regulated profession. One consequence of being a member of a regulated profession is being subject to that profession’s regulator. The adoption by the Law Society of the Code in 2005 cannot be subject now to a claim for damages by a solicitor unhappy with its terms. If anything, it would be a matter of public law - but I hesitate to go further as this may be misconstrued as encouragement.”

Summary

16. It may be that Blacker is a case which the SRA/Society would prefer to forget, but the SRA/Society cannot overlook High Court decisions in the hope that unrepresented requesters will not know about them. As Fraser J confirmed (at [18]), the FOI Codes are “intended to confer rights”. The seriousness of their consequences should have been clear to the SRA/Society from Blacker. The abolition of adjudications does not mean that the rights referred to by Fraser J have vanished: it means that those rights can now be enforced without any need to go through an adjudication process beforehand.

17. Irrespective of whether the relevant text can be redacted from the letter dated 24 February 2017, the manner in which the Society and the SRA have dealt with this matter to date has shown no signs of transparency or procedural fairness. The original response, with its meaningless reference to the “data protection act [sic]”, was inept. That ineptitude has been compounded by a failure to answer legitimate questions, a failure to give me your contact details, a shameless attempt to forestall me from lodging submissions during the review process and the mysterious announcement that the adjudication request in 0192 has been “withdrawn” during your purported review. In purporting to conduct that review, you have disregarded the relevant authorities (and the facts) in order to put forward unsustainable arguments.

18. It is regrettable that the organisation which regulates solicitors considers any of that behaviour appropriate. I reserve the right to take steps to enforce the rights referred to by Fraser J if the SRA/Society continue to misapply/ignore the Codes (or make further attempts to prevent me from lodging representations as part of any review process).

19. As the correspondence shows, I am giving the SRA/Society every opportunity to deal with this matter properly and fairly. Please now do that. Consistent with the promises of transparency and openness contained in the Codes, I look forward to receiving answers to the points set out above, together with a copy of all correspondence relating to the making and withdrawal of the request for an adjudication in 0192, so that I may prepare written representations.

20. It is now nine weeks since I made my information request, so please ensure that I receive the relevant answers and copy correspondence by 4 April 2018. Alternatively, please now disclose the letter dated 24 February 2017 in the correct form (that is, with no redactions beyond the name of the requester).

“Escalation to a complaint”

21. I have read that part of your letter entitled “Escalation to a complaint”. It is pro forma text. It relates to the tone of the SRA’s correspondence and failures to comply with timescales, not to substantive misapplications of the Code(s) or failures to comply with the principles of procedural fairness (which are challengeable through the Courts, if they are not corrected by the SRA/Society). The text is likely (if not designed) to make requesters think that they have no way of enforcing the rights referred to by Fraser J. It needs to be revised to ensure that requesters are not given that mistaken belief.

Yours sincerely

Tim Bullimore

cc Law Society

______________________________

ICO’s response dated 2 October 2015 to request IRQ0595687
Disclosed by the ICO on 28 March 2018, pursuant to an FOI request (IRQ0734663)

Dear [name of requester]

I am writing further to your freedom of information request, we are now able to provide our response.

Your request

You asked us the following questions; please see our answers under each one.

Under the Freedom of Information Act, I would like to know the following information:

1. Please tell me the job title which Adam Sowerbutts holds at the ICO.

Mr Sowerbutts’ job title is ‘Solicitor, Group Manager’. At the time of his application to the Law Society his job title was ‘Solicitor, FOI Appeals’. By the time he was appointed to the role of FOI adjudicator, he had been promoted to Group Manager.

2. Was the ICO a. aware of, and b. did it approve, the application by Adam Sowerbutts for the post of independent FOI adjudicator with the Law Society?

a. Yes, the ICO was aware of the application.
b. The ICO did not approve the actual copy of the application but we were aware it was being made and approved of that fact.

3. Was the ICO a. aware of, and b. did it approve, the terms of the contract under which Adam Sowerbutts acts as independent FOI adjudicator with the Law Society?

We were not aware of the explicit terms of the contract nor did we approve them. But as explained above, we were aware of the application and the nature of the role.

4. Has the ICO given any consideration to whether there may be a potential conflict of interest arising from Adam Sowerbutts holding the post of independent FOI adjudicator with the Law Society whilst being employed by the ICO?

Yes. We and the Law Society have given consideration to this and concluded that there is not. The Law Society is not subject to the FOIA but adheres to a voluntary Freedom of Information Code which replicates certain provisions of the FOIA. Therefore, the Commissioner currently has no statutory role in overseeing the Law Society’s commitment to the freedom of information agenda but welcomes their commitment to it.

Should a circumstance arise where a conflict may occur or appear to occur we do have a mechanism in place for the case or cases to be handled by an alternative member of staff at the same level as Mr Sowerbutts. Further, should the position of the Law Society change in relation to FOIA, Mr Sowerbutts has committed to reconsidering his position.

5. In what capacity does the ICO consider Adam Sowerbutts to be conducting adjudications involving the Law Society? Is he conducting them a. as an employee of the ICO, or b. as a secondee from the ICO to the Law Society, or c. as an independent contractor to the Law Society? b. Is he conducting them as a solicitor?

Mr Sowerbutts is not conducting adjudications as an employee of, or secondee from, the ICO. The ICO considers he acts as a private individual in a lay capacity.

6. When he is conducting adjudications involving the Law Society, is Adam Sowerbutts covered by any policy of professional indemnity insurance held by the ICO?

No.

7. [Request and response relating to a separate matter]

By way of advice and assistance, please see attached a copy of a statement prepared at the time of Mr Sowerbutts’ appointment. The statement was prepared with the intention of providing an explanation should any questions arise over the circumstances of the appointment.

We hope this response provides some reassurance to you.

[Pro forma text]

Yours sincerely

Helen Ward
Information Access Manager

29 March 2018

Dear Mr Stanley

My email dated 9 March 2018 asked you to pass this matter for a review if you were not willing to deal with it yourself. You are not dealing with it, so please now tell me who is going to conduct the review under paragraph 26 of your 2017 Code.

If you read Mr Turton's letter dated 23 March 2018 (copy attached), you will see that he says that the information which has been redacted in the letter dated 24 February 2017 "is not held by the Society". That information is the name of a solicitor. If (as Mr Turton asserts) the Society does not hold it, it appears that the SRA (which is not a registered data controller) is dealing with personal data which is not held by the Society.

I suggest you and Mr Turton reflect on the implications (for both the Society and the SRA) of his assertion that the Society does not hold this piece of personal data. If that assertion is not withdrawn forthwith, the SRA will lead itself into difficulties over its handling of personal data.

The Society and the SRA now need to set the record straight by confirming that the Society does hold the redacted information. Please provide that confirmation immediately.

I cannot copy this email to Mr Turton, because the SRA has failed to give me his email address. I am sending a copy of it to the SRA's generic "information compliance" email address.

Yours sincerely

Tim Bullimore

On 10 April 2018 the SRA sent the following email:

Dear Mr Bullimore

Thank you for your email of 29 March.

I note your objections to how your request for an internal review has been handled. In our email of 7 March, my colleague explained that any submissions you made would be considered as part of the review. In our email of 13 March, this point was made again and the limitation relied upon was identified. I do not consider that this prevented you from making further submissions.

The Information Compliance email address is used to manage correspondence relating to Transparency Code requests so that correspondence is still processed should an individual be out of the business for any length of time. As previously, I do not consider that this prevented you from making further submissions.

Your request for “all correspondence relating to the making and withdrawal of the request for an adjudication in 0192” is being handled as a new request. Our deadline for this is 27 April.

In relation to the question of TLS holding the information, they will of course hold the names of solicitors. They do not however process this information for regulatory purposes so do not hold it in the context of the request. This is why the SRA dealt with your request, as explained in my internal review letter.

With regards to paragraph 4.5 of the handling guidance, this states “If required, third parties are contacted for consultation”. I do not consider that third parties were required to be consulted as part of this request or of this review.

As detailed in the internal review, if you were unsatisfied with the response the next stage in this process is for the Complaints Team to consider how your request has been handled. If you wish this to be escalated to the Complaints Team, please notify me accordingly.

Kind regards

Andrew Turton
Head of Risk and Information Governance
Solicitors Regulation Authority

11 April 2018

Dear Mr Turton

TC/2018/007
____________________________________________________________________

1. I refer to your email dated 10 April 2018.

Your stance

2. Anyone who reads the correspondence can see that your “review” was not conducted in an appropriate manner. Your department’s handling of it was calculated to forestall me from lodging representations on an informed basis. You may regard that as acceptable, but I am confident that a Court (or, indeed, member of the public) would take a dim view of it. It was this sort of behaviour which was described as inept and inflammatory by Fraser J in Blacker v Law Society [2016] EWHC 947 (QB).

3. It is obviously wrong to assert that, despite being (a) the same legal entity as the SRA, (b) the data controller and (c) the issuer of the 2005/06 Code, the Society does not hold the information which has been deleted from the letter dated 24 February 2017. That assertion should not have been made and should be withdrawn immediately.

4. Rather than withdrawing it, you are now trying to resort to a misconceived distinction between processing data for regulatory purposes and processing data for other purposes. If such a distinction were to exist, it would be of no relevance in the context of an FOI response which was sent to a member of the public under the Society’s 2005/06 Code. The test under the Codes is not who is “processing” information, but who holds it. The truth is that the Society and the SRA are the same entity. The Society is the data controller and holds all personal data which is “held” by the SRA. The letter dated 24 February 2017 was sent under the Society’s Code, not under any Code issue by the SRA. The Society holds the entirety of the information contained in that letter, including the name of the solicitor (which was disclosed to the world at large by the sending of the letter) which you are now wrongly trying to redact. The longer you dispute any of this, the more damage you do to the SRA’s credibility and the more difficulties you create for the Society/SRA.

5. The Society’s stated view is that “the Law Society is not exercising its regulatory function when acting pursuant to the [2005/06] Code” and that “the disclosure of information pursuant to the [2005/06] Code does not form part of the Law Society’s regulatory functions”: letter from Bevan Brittan dated 25 September 2015 (ref. OC/L8002/390). Your attempt to distinguish between processing for regulatory reasons and processing for non-regulatory reasons thus becomes even more misconceived: the redacted data were processed for the purpose of responding to a request made under the Society’s 2005/06 Code, not for the purpose of regulating the profession or any member of it. Either you were not aware of the quoted statements or you have overlooked them in order to try to construct a thoroughly unmeritorious argument that the Society does not hold information which is personal data and was recited in a letter sent under its own FOI Code. Similarly, you are overlooking The Law Society [2015] EWHC 166 (Ch), where it was the Society which sought the Court's permission to dispose of information (including “a great deal of personal data”) “held” by the SRA.

6. I cannot see what you think you are achieving by making statements which are demonstrably wrong or conflict with previous pronouncements made the Society and previous decisions of the High Court. That approach is the antithesis of transparency.

7. I note that you are also ignoring (a) the various cases in which details of a solicitor’s complaints history (being his/her regulatory and personal data) were held, processed and disclosed by the Society under the 2005/06 Code (see, for example, FOI/BS/952 (Taylor), FOI/BS/1322 (Holderness) and the adjudications in YZ and SC) and (b) paragraph 4.5 of your own Request Handling Process Guidance (so as to avoid consulting the solicitor whose name was recited in the letter dated 24 February 2017).

8. You are still omitting to say whether the relevant solicitor was informed of the adjudication in 0192. Your continued avoidance of this point leads to the inferences that (i) he/she was not informed of it, (ii) that failure accounts for the attempt to delete his/her name from the letter dated 24 February 2017 and (iii) the “withdrawal” of the referral to adjudication was brought about during your purported review process, as a reaction to my information request. In the light of Blacker, it is clear that (a) the solicitor should have been told about the adjudication and given the opportunity to participate in it and (b) the mere fact that he/she was the subject of a non-defamatory information request is not non-disclosable personal data.

9. If you were to state that the solicitor was indeed told about the request and adjudication in 0192 (and confirm the date upon which he/she was told about it), I would consider not pursuing this matter any further. Regrettably, you appear unable to make that statement. The only sensible conclusion is that he/she was not told about the request or the adjudication and that the redactions are aimed at ensuring that he/she does find out about them. You have provided no other credible explanation for redacting a name which was included in an FOI response. Any assertion that the redactions are aimed at avoiding breaching the DPA 1998 or causing “distress” to the solicitor is unsustainable: see Blacker, at [20]. If there has been any risk of breaching the DPA 1998, the solicitor’s name would not have been recited in the letter dated 24 February 2017.

Complaints Department

10. The “next stage in this process” is not an “escalation” to your Complaints Department, because you have made clear that your Complaint Department deals only with time limits and the tone of correspondence: it does not deal with misstatements of fact or law, misapplications of the Codes or breaches of the rules of procedural fairness. The Society/SRA having chosen to abolish adjudications, those are now matters for a Court.

11. The Codes confer rights (Blacker, at [18]) and, as the Society/SRA know, rights are enforceable in Courts (not in complaints departments). The “next stage in this process” would be the preparation of a letter of claim. I am giving you and the Society every opportunity to avoid that situation.

The Society

12. You are not employed in the Society’s Information Compliance Department and are not in a position to make statements about what information the Society does and does not hold: such matters are outside your knowledge. It is for the Society (not you or anyone else at the SRA) to deal with that issue. Far from doing that, the Society has refused to reply to correspondence. That behaviour shows a wholesale disregard for the terms (and aims) of its 2017 Code.

13. If the Society belatedly wishes to assert that it does not hold the redacted information, it needs to say so. It would bear the onus of proving that assertion (Bromley v Information Commissioner EA/2006/0072), so it would need to send me:

(1) Full details of all searches which it has made for the redacted information (including the enquiries which it has made of its regulatory department (the SRA) and the enquiries which it has made of its contracted adjudicator, to whom 0192 was passed); and

(2) A fully documented explanation of why, despite its obligations under section 6 of the Solicitors Act 1974 and as a registered data controller and approved regulator, the Society (a) does not hold the name of a solicitor, (b) does not hold a record of all requests and responses which were received and sent under its 2005/06 Code and (c) does not know what information (including personal data) was sent to its contracted adjudicator in respect of all disputes which arose under that Code.

14. If the Society wishes to go down that route, it is open to it to do so. Otherwise, I await its confirmation that it holds the redacted information and will deal with my request dated 25 January 2018 in accordance with its 2017 Code.

15. If the Society continues to ignore my correspondence, it will cause further damage to the credibility of any purported commitment to openness/transparency. Enough damage has already been done by the way in which this matter has been handled to date.

Yours sincerely

Tim Bullimore

cc Law Society

On 26 April 2018 the SRA sent the following letter:

Dear Mr Bullimore,

Information request – Our Ref: TC/2018/053

Your letter of 28 March 2018 has been passed to me to respond to your request for information, which I have handed under the SRA’s Transparency Code.

You requested the following information:
“… please send me a copy of all correspondence relating to the making and
withdrawal of the request for an adjudication in 0192. You are, of course, welcome to
redact the requester’s name and contact details. If you insist upon redacting the
name of the relevant solicitor, I do not object to that at this stage.”
My response:
I am unable to release the correspondence requested.
Please find my reasoning below as well as a summary of the matter, that I am able to
provide, which addresses your request.
Having considered the documents in question I have concluded that they contain
personal data and I feel that that any disclosure, even a disclosure of the documents
in redacted form, would be unfair as could potentially lead to the identification of the
requester.
In reaching this decision I have been influenced by the specific aspects of this case,
as well as the wishes of the requester. This is because the requester decided to withdraw from the adjudication process due to privacy concerns arising from the
proposed disclosure of information into the public domain that may identify them.
We received the request for an adjudication in this matter on 10 April 2017, which we
forwarded to the Adjudicator to start the formal process on 12 April 2017.
At this stage in the process there followed some delay due to various circumstances.
However, by 22 November 2017 both parties confirmed that the adjudication was to
proceed and there followed further correspondence between the parties and the
Adjudicator.
In correspondence to the Adjudicator on 02 January 2018 the requester stated that
they were unaware at the outset of the adjudication process that an adjudication
would result in a public document.
The requester, having reviewed other published adjudications on The Law Society’s
website, stated that the public nature of the formal adjudication process raised issues regarding their privacy.
The requester in this matter not only had concerns as to their identification from their
initials, or other identifiers used in the published adjudication, but also stated that
they believed the solicitor in question should not be identifiable in the adjudication for
the same reason.
They stated that they were uncomfortable with the process and sought comment
from the Adjudicator in this matter.
The Adjudicator responded to the requester on 22 January 2018 stating that the
outcome of an adjudication would be public, and any formal written adjudication
would be published on the Law Society's website in line with previous adjudications,
however consideration could be made to anonymise the adjudication further if the
requester could outline any likely prejudice which could arise from the publication of
the adjudication.
Following some time allowed for the consideration of the matter, the requester
contacted the Adjudicator on 27 February 2018 and asked that in these
circumstances the formal adjudication not go ahead.
The Adjudicator responded on 27 February 2018 and confirmed that, as the
requester’s position was that that they did not want to proceed with a formal
adjudication, the matter would be closed.
Upon receiving this information from the Adjudicator, the Information Governance
and Compliance Team also confirmed to both the requester and the Adjudicator on
the 27 February 2018 that we would be closing our file in this matter.
In weighing up what can be disclosed in this matter, and what needs to be withheld to
protect the rights and freedoms of the individual who made request FOI SRA 0192, I
have carefully balanced the need for the SRA to provide transparency in its handling
of the information request in question, as well as the public interest in accountability,
against the concerns and wishes of an individual correspondent. Having fully considered the matter, I have concluded that disclosure of the redacted
correspondence would not provide any further clarity on this case and that the
summary as provided above satisfies this request whilst also protecting the individual
correspondent who has raised privacy concerns in regard to public disclosure.
Please quote the reference number TC/2018/053 if you decide to contact us further
regarding this request.
Yours sincerely,
Charlie Smith
Information Governance Officer
Solicitors Regulation Authority

26 April 2018

Dear Mr Smith

2018/053

I confirm receipt of your letter dated 26 April 2018. So that I may consider and reply to that letter, please confirm that the adjudicator whom you mention was Mr Sowerbutts.

Yours sincerely

Tim Bullimore

On 1 May 2018 the SRA wrote as follows:

Dear Mr Bullimore,

I can confirm that the adjudicator referred to in my response under reference TC/2018/053 was Mr Sowerbutts.

Kind regards

Charlie Smith

Information Governance Officer

Solicitors Regulation Authority

The requester has very kindly provided WhatDoTheyKnow admins with a copy of the "SRA Request Handling Process Guidance" which the authority had sent direct to him in email.

I have made the file available here: http://files.whatdotheyknow.com/request/...
--
Doug - volunteer, WhatDoTheyKnow.com

Thank you for adding that.

Tim Bullimore

11 May 2018

Dear Mr Smith

I refer to your letter dated 26 April 2018.

The unevidenced account of events contained in that letter raises many more questions than it answers. I have put those questions to Mr Turton in a separate letter.

As happened before, your letter fails to cite any of the numbered limitations set out in your Code. I presume that you are relying upon limitation 5.

Your letter suggests that the requester in 0192 was concerned about being identified from a full, written decision of the adjudicator. That is no longer a concern, because your letter makes clear that there will now be no decision from the adjudicator: according to your letter, the requester withdrew from the adjudication upon being told that he/she would need to outline "prejudice" in order to obtain "further anonymisation" in the full decision.

By contrast, the correspondence which I am requesting is of a purely procedural nature. It is unlikely contain anything from which the requester could be identified - other than his/her name and contact details, which can easily be redacted. Please therefore make those redactions and disclose the correspondence.

I would add that if (as your letter indicates) the requester was told that he/she needed to show prejudice in order to obtain anonymisation in the adjudicator's written decision, that statement was without legal foundation and wrong. If your letter is to be believed, it caused the requester to withdraw from the adjudication, with the consequences that (i) almost a year of his/her time was wasted and (ii) the public was deprived of any chance of reading a decision from the adjudicator or seeing the information requested in 0192. These are matters of serious concern, especially if the requester was an unrepresented layperson who was permitted no say in the choice of adjudicator and was expected to navigate an adjudication process which had no published rules. They make it all the more important that the correspondence which I am requesting now be disclosed, not withheld.

I trust that Mr Turton will now reply to my letters dated 11 April and 1 May 2018 without further delay, so that I do not have to pursue the matters raised in those letters with other relevant organisations (or with the adjudicator).

Yours sincerely

Tim Bullimore

18 May 2018

Dear Mr Bullimore,

I acknowledge receipt of your email.

This email, along with your earlier correspondence, is being considered.

We will respond to you in due course.

Kind regards

Charlie Smith

Information Governance Officer

Solicitors Regulation Authority