An individual had asked the FSA to disclose reports relating to its enquiries into an overseas property investment scheme, as well as those in connection with what the individual claimed was the regulator's referral of the case to the Serious Fraud Office. However, the FSA had refused to disclose the information sought on the grounds that exemptions to such disclosure had been triggered under the terms of the Freedom of Information (FOI) Act.
The individual appealed to the Information Commissioner in a bid to convince the watchdog that the FSA's refusal to disclose the information was unjustified, but the complaint has now been rejected.
The FSA had claimed the information sought was 'confidential' and that, as such, it was precluded from disclosing it under the terms of the Financial Services and Markets Act (FSMA). The FOI Act allows public bodies to refuse requests for information if disclosure is "prohibited by or under any enactment".
The FSMA places a ban on the disclosure of confidential information by the "primary recipient" of that information or those "obtaining the information directly or indirectly from a primary recipient." The ban on disclosure does not apply if a recipient has the permission of those who provided the information, or if different, those to whom the information relates.
The Information Commissioner said that it accepted the FSA was a "primary recipient" of information and said that it also accepted the former regulator's reasoning of why the information was to be treated as being 'confidential' and why it could not be anonymised for the purposes of disclosure.
"The FSMA ... stipulates that information cannot be confidential information if it can be summarised or so framed that it is not possible to ascertain from it information relating to any particular person," the watchdog's decision notice said. "The Commissioner does not consider this to be a relevant consideration in this case. This is because the focus of the request itself, which makes [named company] its subject, removes the possibility of making the information anonymous."
Because the company to which the information related had not given consent to the disclosure of the information held by the FSA, the Information Commissioner deemed that the regulator had correctly refused to disclose the information (10-page / 175KB PDF) on the basis of the 'prohibited under enactment' exemption set out in the FOI Act.
The FSA had also deemed some of the information sought by the requester to constitute personal data and had refused to disclose the details. The personal data amounted to signatures FSA staff had placed within documents.
Under the FOI Act, public bodies are prohibited from disclosing personal data unless there is an overriding public interest in that disclosure. In this case the Information Commissioner said that there was "minimal legitimate public interest" in disclosing the names of the FSA staff
The FSA had further claimed that the disclosure of information sought would prejudice the commercial interests of the company named in its documents in breach of the FOI Act.
Under the Act information which would, or would be likely to, prejudice the commercial interests of businesses or even the public bodies asked to release information can be withheld, subject to it not being in the overriding public interest for that information to be disclosed.
The Information Commissioner said that the FSA's claims of commercial interests being prejudiced in this case were "real, actual and of substance" even though the regulator had "not obtained the company’s views on disclosure".
The watchdog said that there was a "strong public interest" in forcing the FSA to disclose the commercially sensitive information. This was in order to review whether the regulator was properly conducting its regulatory functions, it said. However it ruled that there was an even stronger interest in requiring the information to be withheld on the basis that it related to a company that had not been the subject of enforcement action by the FSA despite being subject to an investigation.
The FSA had therefore correctly applied the 'commercial interests' exemption under the FOI Act in this case, the Information Commissioner said.
