Policy on disclosing information in the public interest

The Scottish Legal Complaints Commission (SLCC) is generally in favour of broader disclosure of information about complaints to aid transparency, learning and continuous improvement. 

There is a general restriction in the legislation on the disclosure of information about complaints, and this remains the default position. The SLCC may, however, decide to disclose information about a complaint or complaints if it considers it to be in the public interest.

The disclosure may include information that identifies or is likely to identify any practitioner, firm or legal services provider to whom the complaint relates, but it may only include information that identifies or is likely to identify the complainer with the complainer’s consent.

The disclosure may include information relating to the investigation or resolution of a complaint, or any outcomes resulting from the complaint.

The decision to disclose information can only be made a Board Member.

The public interest disclosure test

The public interest disclosure test will ensure that any decision to disclose information in the public interest is clearly and robustly justified, necessary, proportionate and defensible.

Decisions will be determined on the facts and circumstances of each case.

All disclosure decisions made under this policy will be documented with a clear rationale, including consideration of public interest, risks and mitigations, and legal and regulatory obligations, to support transparency and safeguarding of the public and the wider profession.

The SLCC will consider making disclosures in the public interest where the information in the complaint or complaints:  

• exposes serious or systemic service failure; and/or 
• reveals exceptional or severe harm, or the potential to cause exceptional or severe harm, to consumers of legal services; and/or 
• corrects misinformation that could undermine public confidence in legal services; and/or 
• clarifies facts where silence would cause serious harm or unfairness to the public; and/or 
• protects the public from misleading statements about legal services; and/or 
• reveals a severe or sustained lack of co-operation with the SLCC (for example, repeated non-compliance with regulatory and statutory requirements, such as section 17 orders or non-payment of the complaints levy) which risks undermining public confidence in legal services and/ or raises significant consumer protection concerns; and/or
• highlights systemic issues, emerging risks, or recurring themes identified through complaints, and disclosure would support wider learning, improvement of practice, or the prevention of similar issues arising in the future. 

Risk assessment

After conducting a public interest disclosure test and identifying a potential disclosure in the public interest, the SLCC will then undertake a risk assessment.

The risk assessment will assess whether the benefits of publicly disclosing information outweigh any potential risks or harms, including impacts on consumers, legal and regulatory compliance, and the safety and wellbeing of individuals (consumers and practitioners). 

Where a decision to disclose information is being considered, practitioners/ firms will be notified at least 14 days in advance to provide them with an opportunity to make any written representations.

The SLCC will take any such representations into account prior to taking the decision to disclose information.

Where a firm has ceased trading or otherwise no longer exists, the SLCC will make every reasonable effort to contact any relevant practitioners directly and provide them with the same opportunity to make representations.

When the information to be disclosed relates to a complaint about a firm of solicitors, the SLCC will normally seek to publish the name of the firm rather than the practitioner. Where the firm consists of a sole practitioner, where the practitioner is readily identifiable from the subject of the complaint, or where the practitioner is no longer associated with the firm, the SLCC will take these matters into account as part of its risk assessment before deciding whether and how to disclose information and before notifying the firm and any relevant practitioners.

In general, the SLCC will never seek to publish the name of a complainer or any information which, in the opinion of the SLCC, is likely to identify them, except in very limited circumstances as set out below. 

The SLCC might name a complainer if they specifically request to be named publicly and/or formally consent to public disclosure in a written declaration.  

The SLCC reserves the right not to disclose information about a complainer, even if they request or consent, and will explain any decision-making to the complainer.  

Disclosing information

Following a risk assessment, any recommendation to make a disclosure will be referred to a Board Member for a decision in a recommendation report.

Disclosure decisions will be allocated to Board Members on the basis of availability, having ensured there are no actual, potential or perceived conflicts of interest.

The recommendation report will set out why the SLCC is considering disclosure, any risks associated with the disclosure, including any potential impact on the reputation and legitimate business interests of the firm or practitioners concerned, and how those risks have been weighed against the public interest in disclosure.

The recommendation report will also set out the SLCC’s reasoning in support of the recommendation, what information we will disclose, in what circumstances, and to whom.  

If the Board Member approves, the test has been met for disclosure in the public interest.  

The SLCC will notify the practitioner or firm, and the relevant professional organisation, of its decision prior to any disclosure being made under this policy.

Decisions to disclose information in the public interest will be recorded, together with the reasons for the decision, the factors considered, the name of the decision maker and the outcome of any risk assessment.

This policy will be kept under review in light of use and good regulatory practice.