FOI1527 fsa guidance to firms since judgment - refused

[Amethyst]

Our ref: FOI1527

Dear Ms xxxx
Thank you for your request under the Freedom of Information Act 2000 (the Act), for the following information:

• • “With reference to the OFT v Abbey & Ors. test case and complaints handling where the complaints involve overdraft fees please could you forward copies of letters/guidance issued to the firms by the FSA relating to the issue of banks charges since 20 November 2009.”

Your request has now been considered and we can confirm that we hold the information you have requested.
In summary, in the period from 20 November 2009 to date, firms were advised that when complaints that are currently on hold are resolved, they should be included in the firm’s normal FSA complaints return, under the cause of complaint category of ‘Terms and disputed sums / charges’.
I also attach a link to an FSA press release dated 25 November 2009, in which firms were advised that they can now resume processing consumers’ complaints in accordance with the FSA’s complaint handling rules.
http://www.fsa.gov.uk/pages/Library/Communication/Statements/2009/bank_charges.shtml
However, in relation to the remainder of the information held, we are unable to disclose it to you because a number of the exemptions in the Act apply. Two of these exemptions are absolute exemptions (sections 40 and 44), meaning that that there is no obligation to disclose the information or weigh up the public interest test where the information falls within the scope of the exemption. The applicable other exemption (section 31) is qualified, meaning that in deciding whether or not to apply it, we must consider whether the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
We consider that some of the information we hold, and which falls within the scope of your request, contains information that the FSA has received for the purpose of carrying out its regulatory functions under the Financial Services and Markets Act 2000 ("FSMA"), and so the following exemption applies:

• Section 44 (Prohibitions on disclosure)
  
  
  • Section 44 provides that information is absolutely exempt if its disclosure (otherwise than under the Act) is prohibited by or under any enactment. Section 348 of the FSMA restricts the FSA from disclosing "confidential information" it has received except in certain limited circumstances (none of which apply here).
    Confidential information for these purposes is defined as information which relates to the business or other affairs of any person and which was obtained by the FSA for the purposes of or in the discharge of its functions under FSMA and which is not in the public domain. In this case, the guidance issued to the relevant firms contains a summary of information we have received from these firms
    The FSA is prohibited from disclosing to you any information which we received while performing our regulatory duties and which is not in the public domain. Disclosure of any such confidential information is in breach of section 348 of FSMA and is a criminal offence.
  
  A small amount of the information we hold, namely the names of members of staff of both the FSA and the firms, constitutes the personal data of individuals other than yourself. To disclose that information would breach the Principles of the Data Protection Act 1998 and so the following exemption applies:
• Section 40 (Personal information)
  
  • Section 40(2)(a) of FOIA provides that "Any information to which a request for information relates is also exempt information if … it constitutes personal data which do not fall within subsection (1)".
    We consider that it would be a breach of data protection principles to disclose this information, as it would not be lawful or fair to the individuals concerned. The individuals have not consented to their personal information being made public and they had no expectation that it would be. Release of such information may be detrimental or upsetting to the individual.
    Both these exemptions are ‘absolute’ exemptions, and so it is not necessary to balance the public interest for and against disclosing the information.
  
  We also consider that if (the remainder of) the information we hold is disclosed it would impact on our regulatory ability to effectively engage with firms in the sector, and so the following ‘qualified’ exemption also applies:
• Section 31 (Law enforcement)
  
  
  • Section 31(1)(g) of the Act applies because the information requested, if disclosed, would, or would be likely to, prejudice the exercise by the FSA of its functions for the purposes of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise. In particular, disclosure of the information requested would disclose details of the way in which the FSA approaches issues such as the issuing of the waiver on dealing with complaints in relation to bank charges.
    This would be likely to provide firms in the sector (or the public at large) with an insight, or what they perceive to be an insight, into the FSA's regulatory and supervisory priorities. Firms (or the public at large) may then conclude that the FSA's priorities (or what they perceive to be the FSA’s priorities) lay in relation to particular products or a particular sector, etc.). Likewise, disclosure might lead to conclusions being drawn that the FSA's regulatory priorities lay elsewhere. Either eventuality might lead them to take steps designed to frustrate the regulatory process.
    The information requested also forms part of the FSA’s ongoing discussions with relevant firms on this matter. To release it at this stage of the proceedings would reduce the FSA’s ability to engage effectively with those firms on the full range of issues.
    This exemption is qualified and we have balanced the public interest for and against disclosure as required by the Act. In all the circumstances of this case, we have concluded that the public interest lies against disclosure for the reasons set out below:
    In favour of disclosure:
  • There is a public interest (in terms of transparency and as a means to providing examples of good and poor practice) in favour of disclosure of the information requested.
    
  • Public confidence would be enhanced by showing that the FSA is able to mitigate any risks that may exist to the FSA in meeting its statutory objectives. In turn, this will help maintain the public’s confidence in the banking sector and / or the protection of consumers.
    
    Against disclosure
  • There is a strong public interest in the FSA being able to exercise its functions under FSMA in the most effective way possible and for the protection of consumers. Disclosure of the information requested, would, or would be likely to, undermine the willingness of firms to participate with the FSA in future. In turn, this would harm the FSA’s ability to obtain this type of information voluntarily, so helping us to promote good practice and address the areas and firms where serious and sustained failings had been identified.
    
  • It is vital and clearly in the public interest that the FSA is able to maintain a confidence with the firms it regulates but, equally, provide a credible deterrence to potential breaches of the FSA’s rules. The FSA must ensure that where specific issues are identified these can be discussed and addressed in a free and frank way. It is crucial that this can be achieved with the full co-operation of those concerned to avoid any harmful delay in dealing with any potential failures, without fear of ad-hoc disclosure about a specific firm or group of firms.
    

If you have any queries or are unhappy with the decisions made in relation to your request you have the right to request an internal review. If you wish to exercise this right you should contact us within three months of the date of this letter.
If you are not content with the outcome of the internal review, you also have a right of appeal to the Information Commissioner at:
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Telephone: 01625 545 700
Website: www.ico.gov.uk

Yours sincerely

S. Spies (Mrs)
Information Access Team

[Amethyst]

Re: FOI1527 fsa guidance to firms since judgment - refused

hmmmmm


Dear Ms Spies

Thank you for your response to my FOI request for information ''“With reference to the OFT v Abbey & Ors. test case and complaints handling where the complaints involve overdraft fees please could you forward copies of letters/guidance issued to the firms by the FSA relating to the issue of banks charges since 20 November 2009.”''

I am a little confused over the exemptions you have applied to the request.

Section 40 (Personal information)
My request is for guidance or letters issued to firms by the FSA following the test case and relating to the issue of banks charges. I am unsure why such guidance should include any individuals personal information. It is quite standard for names / email addresses of senders of letters/guidance to be redacted from disclosure of such information. If you could clarify that would be appreciated.

Section 44 (Prohibitions on disclosure)
My request asks only for letters/guidance issued TO firms by the FSA. I have not requested any information on responses to any letters/guidance issued.

Section 31 (Law enforcement)
Again, my request only asks for letters/guidance issued TO firms by the FSA, not any responses from the firms.

You have stated ''We consider that some of the information we hold, and which falls within the scope of your request, contains information that the FSA has received for the purpose of carrying out its regulatory functions under the Financial Services and Markets Act 2000 ("FSMA"),''

I have not asked for information that has been received, only letters/guidance that which has been issued to firms by the FSA.

If I am required to clarify my request to ask only for formal guidance issued to Firms since the 20th November 2009 to exclude any responses from firms, or the FSA's responses to those responses, then please confirm this is the case.

Kind regards

[Amethyst]

Re: FOI1527 fsa guidance to firms since judgment - refused

Our ref: FOI1527

Dear Ms x,

I refer to your email below and apologise for the delay in responding to you.

In your email you advised that you were unclear as to why we had applied the exemptions we had to the information we hold in relation to your request.

We appreciate that you had asked for "copies of letters/guidance issued to the firms by the FSA relating to the issue of bank charges since 20 November 2009". However, the information we hold is a series of interactions between the FSA and the relevant firms. Although there may be guidance that went from the FSA, it forms part of these interactions with individual firms and therefore forms part of our regulatory discussions that took place. For that reason we withheld the information as explained in my email of 9 February 2010.

In relation to the exemptions, section 44 applies because any guidance that may have been given to the firms, because it was given as part of a continuing chain of interactions with the firms, has information received from the firms embedded within it and which cannot be separated. Section 40 applies because the personal details of those involved in those interactions would otherwise be revealed. These individuals would not expect their names to be disclosed and have not given their consent for us to do so. Section 31 applies for the reasons given in original response. As we also explained in this response, the FSA is still having ongoing discussions with the relevant firms on this issue, and disclosure of these details would reduce the FSA’s ability to engage effectively with those firms on the full range of issues. It is vital that the FSA has a means of discussing and addressing issues with firms in a free and frank way.

I trust this clarifies the position.

Yours sincerely

S. Spies (Mrs)
Information Access Team