Legislative basis for policy on disclosing information in the public interest

41A Power to disclose information about complaints: Commission

(1) The Commission may, if it considers it to be in the public interest, disclose information about any conduct complaint, regulatory complaint, services complaint or handling complaint, including—

(a) information that identifies or is likely to identify any person to whom the complaint relates,

(b) information about the investigation or resolution of the complaint,

(2) But information that, in the opinion of the Commission, identifies or is likely to identify the complainer may not be disclosed under subsection (1) unless the complainer consents to its disclosure.

42 Disclosure of information by Commission: privilege

For the purposes of the law of defamation, the disclosure of any information by the Commission under section 24, 35(2), 36(2), 41A or paragraph 16 of schedule 1 is privileged unless the disclosure is proved to be made with malice.

43 Restriction on disclosure of information: Commission

(1) Except as permitted by subsection (3), no information mentioned in subsection (2) may be disclosed.

(2) The information is information—

(a) contained in a conduct complaint, services complaint, regulatory complaint or handling complaint;

(b) which is given to or obtained by the Commission or any person acting on its behalf in the course of, or for the purposes of—

(i) any consideration of such a complaint;

(ii) an investigation (including any report of such an investigation) into a services complaint or a handling complaint.

(3) Such information may be disclosed—

(a) for the purpose of enabling or assisting the Commission to exercise any of its functions (including the disclosure of information of information under section 41A(1));

(aa) for the purpose of enabling or assisting a regulatory body to exercise any of the body’s functions,

(b) where the disclosure is required by or by virtue of any provision made by or under this Act or by any other enactment or other rule of law.

(4) Any person who, in contravention of subsection (1), knowingly discloses any information obtained when employed by, or acting on behalf of, the Commission is guilty of an offence and liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.

(4A) In subsection (3)(aa), “regulatory body” means any regulatory body as the Scottish Ministers may by regulations specify.

(4B) Regulations under subsection (4A) may—

(a) include transitional, transitory or saving provision,

(b) make different provision for different purposes.

(4C) Before making regulations under subsection (4A), the Scottish Ministers must—

(a) consult—

(i) any regulatory body that is proposed to be specified by the regulations,

(ii) the Lord President,

(iii) the Commission,

(iv) the independent advisory panel established under paragraph 11A of schedule 1,

(v) each category 1 and category 2 regulator,

(vi) each approved regulator within the meaning of Part 2 of the Legal Services (Scotland) Act 2010,

(b) publish a report describing—

(i) the consultation carried out,

(ii) any representations received in response to the consultation, and

(iii) the changes (if any) to the proposals as a result of the representations, and

SCHEDULE 1 – Delegation of functions

13 (2) The Commission may authorise—

[…] (ca) the making of any decision on the disclosure of information under section 41A to be exercised only by one of the Commission’s members […]

Legislative basis for policy on disclosing information in the public interest

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