"Private warnings' no longer private?
An important decision of the Information Commissioner will potentially affect the practice of many disciplinary and regulatory bodies. A complainant requested the Financial Services Authority (FSA) to provide him with the names of any companies it had identified as using inappropriate charges in setting premiums when selling endowment mortgages. The FSA refused the request on the grounds that exemptions under section 31 of the Freedom of Information Act 2000 (law enforcement), section 43 (commercial interests) and section 44 (statutory prohibition) applied.
The FSA agreed that section 30 was not applicable as they did not consider that the breaches highlighted in the review amounted to a criminal offence, and felt that section 31 more closely fitted the reasons why it considered the information should be withheld.
Section 31 provides an exemption to the disclosure of information where disclosure would, or would be likely to prejudice the purposes of law enforcement. The exemption is qualified in that it may only be used where the exemption in section 30 (investigations and proceedings carried out by public authorities), of the Act is not applicable.
Section 43 provides an exemption to the disclosure of information where disclosure would, or would be likely to prejudice the commercial interests of any party, or if the information is a trade secret.
The Commissioner decided that the exemptions under section 31 did not apply. He decided that the exemption under section 43 was applicable, but that the public interest in disclosing the information outweighed that of maintaining the exemption. His reasoning may be found in his decision, reference: FS50075781.
The Commissioner’s decision is currently under appeal by the FSA.
NOTE: The FSA did not seek to rely upon section 348 of the Financial Services and Markets Act 2000, which prohibits the disclosure of information by the FSA where the information is confidential and the provider has not consented to its disclosure.
4th Edition » | Chapter 23