FSA Freedom of Information response

[EXC]

Well what do you know?

After sending off a complaint to the FSA at 7pm this evening informing
them that they are now in breach of the Freedom of Information Act
by not responding within the 20 working days, I'm just putting the cat
out - at 9.30 - and their response suddenly arrives.

Needless to say they wern't forthcoming on request 6 but seem to be
saying they might be after the 2 month waiver review.

Ill obviously check this with them on Monday but in the meantime
does anyone have a better idea of what they mean?


Our ref: FOI0737


Dear Mr EXC
I refer to your request for information which was received on 2 August 2007, under the Freedom of Information Act 2000 ("the Act"), for the following information:

• • "1) On what date was it agreed that the OFT and banks would take a test case? Was the FSA involved in those discussions?
    
    2) On what date was it agreed that the FSA would introduce a waiver?
    
    3) On what date was your report entitled 'FSA grants waiver on complaints handling' agreed for publication'?
    
    4) On what date was it decided to publish the said report on 27 July?
    
    5) Please provide the advice supplied to senior management in regard to the date of publication.
    
    6) Please supply all correpondence [sic] (either letter or e-mail) between the OFT and the FSA between January 2007 and
    
    27 July 2007 in relation to bank charges."

Points 1) to 4) of your request are being taken forward as business as usual and not under the Act. The responses to these questions are as follows:

1) On what date was it agreed that the OFT and banks would take a test case? Was the FSA involved in those discussions?

• • The FSA was involved in the discussions, but the OFT and the Banks made the decision to take a test case.
    The Agreement (which included the introduction of the waiver) became effective once the FSA signed it on 26 July.
    Below is a link to the Agreement which is displayed on the OFT's website
    http://www.oft.gov.uk/shared_oft/press_release_attachments/bankagreement.pdf

2) On what date was it agreed that the FSA would introduce a waiver?

• • The FSA, by a decision taken by its Retail Regulatory Committee ("RRC") on 18 July, decided to make a waiver of the FSA complaints handling rules available to a number of banks and building societies that provide account services with overdraft facilities. The RRC decision to grant the waiver received FSA Board approval on 26 July.

3) On what date was your report entitled 'FSA grants waiver on complaints handling' agreed for publication?

• • The press release entitled 'FSA grants waiver on complaints handling' was agreed for publication on the 26 July.

4) On what date was it decided to publish the said report on 27 July?

• • Our press release was issued to the media on 26 July and was posted on our website on 27 July.
    The decision to publish our press release on 26 July was made on 26 July, following approval by the FSA Board to grant the waiver.

Questions 5) and 6) of your request are being taken forward under the Act.

5) Please provide the advice supplied to senior management in regard to the date of publication.

• • I can confirm that we do not hold the information you have requested.

6) Please supply all correspondence (either letter or e-mail) between the OFT and the FSA between January 2007 and 27 July 2007 in relation to bank charges.

• • With regard to the information we do hold, we are not able to disclose it to you because the following absolute exemptions apply:
    • Section 21 (Information accessible to you by other means)
      
      To the extent that we do hold publicly available information, we are not required to release this under the Section 21 exemption as it is information accessible to you by other means. Some of the information is available on the FSA website:

Deloitte Cost of Regulation Report
http://www.fsa.gov.uk/pubs/other/deloitte_cost_of_regulati on_report.pdf
The other publicly available information that we have you can obtain from:
BBC (Lloyds TSB court case re overdraft penalty charges)
http://news.bbc.co.uk/1/hi/business/6657025.stm
Birmingham Post

• • • http://icbirmingham.icnetwork.co .uk/birminghampost/business/tm_method=full%26objectid =19254183%26siteid=50002-name_page.html

Financial Times

• • • http://search.ft.com/iab?queryText=overdraft%2 0charges&y=6&aje=true&x=1 2&id=070710000645&locatio n=http%3A%2F%2Fsearch.ft. com%2FftArticle%3FqueryTe xt%3Doverdraft+charges%26 y%3D6%26aje%3Dtrue%26x%3D 12%26id%3D070710000645&re ferer=http%3A%2F%2Fsearch .ft.com%2Fsearch%3FqueryT ext%3Doverdraft+charges

HM Courts Service
http://www.hmcourts-service.gov.uk/cms/1440.htm
Office of Fair Trading
http://www.oft.gov.uk/news/press/2007/106-07
The Financial Ombudsman Service
http://www.financial-ombudsman.org.uk/news/updates/bank-charges-26-07-07.html

• • • 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 FSMA restricts the FSA from disclosing "confidential information" it has received except in certain limited circumstances (not one 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 was received by the FSA for the purposes of or in the discharge of its functions under FSMA which is not in the public domain.
      Disclosure of confidential information in breach of section 348 is a criminal offence.
      Consequently we are prohibited from disclosing to you any information that we have received which is not in the public domain.

In addition, I am writing to advise you that we consider that the information may also be exempt under the following qualified exemptions:

• • • Section 31 (Law enforcement)
    • Section 36 (Prejudice to effective conduct of public affairs)
    • Section 42 (Legal professional privilege)

Section 31 of the Act will apply if the exercise by any public authority of its functions for any of the purposes specified in subsection (2), among others, the public body holding the information might be harmed by its public disclosure.

Section 36 of the Act will apply where disclosure of the information would be likely to prejudice the effective conduct of our public affairs.
Section 42 of the Act will apply where the information is subject to legal professional privilege.

The above three exemptions are qualified exemptions and the FSA is required to weigh the public interest in maintaining the exemptions against the public interest in disclosing the information. By virtue of section 10(3) of the Act, where public authorities have to consider the balance of the public interest in relation to a request, they do not have to comply with the request until such time as is reasonable in the circumstances. The FSA has not yet reached a decision on the balance of the public interest. Due to the need to consider, in all the circumstances of the case, where the balance of the public interest lies in relation to the information that you have requested, the FSA will not be able to respond to your request in full within 20 working days. In these circumstances, we should be in a position to respond to your request by 28 September 2007. If you do not receive my response or further information by then, please contact me and I will investigate the matter.

Yours sincerely

Shelley Spies (Mrs)
Information Access Team


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[Nattie]

Re: FSA Freedom of Information response

Sorry I had to laugh at the name at the bottom of the email. EXC you just couldn't make the name up. Does she spy though?

[Nattie]

Re: FSA Freedom of Information response

I am going to add some comments, because the article in the Birmingham Post has some comments by Angela Knight that i agree with. THe system was shot through because one organisation would talk with one hand and then it went to the FOS who spoke with a different hand. Even internally, at what is called town hall meetings, staff were questioning the absurdity of NatWest in branch policy of not refunding and then Customer Relations Unit refunding it. In point of fact had the OFT not come along, we would potentially have seen more flexibility within the branch structure on refunds.

[EXC]

Re: FSA Freedom of Information response

Sorry I had to laugh at the name at the bottom of the email. EXC you just couldn't make the name up. Does she spy though?

Well she was obviously lurking around the FSA's offices late in the evening
so you could be right!

[EXC]

Re: FSA Freedom of Information response

----- Original Message ----- From: EXC
To: Freedom of Information FSA
Sent: Monday, September 03, 2007 6:19 PM
Subject: FOI0737




Dear Mrs Spies

Thank you for your e-mail of 31 August.

I would be grateful if you would clarify the status of question 6 in your response.

You quote absolute exemptions s21 and s44 apply and then go on to say s31, 36 and 42 (qualified exemptions) may apply pending consideration of the balance of public interest. Would I be correct in assuming that s21 and s44 apply to some of the information requested and s31, 36 and 42 may apply to the balance? And if this is the case, why have you specifically chosen 28 September - the day after the waiver review - to respond?

As I am sure you are aware, section 36 can only be invoked if it holds in the view of a ''reasonable person'', which the DCA's guidance indicates is usually a minister. As the FSA is a non-ministerial department I assume you will seek the view of the Chairman or the Chief Executive. Will you?

With regard to the 3 qualified exemptions that may be invoked dependent on a decision on the balance of public interest issue, I am aware that dozens of Members of Parliament have now written to the FSA and OFT on behalf
of their constituents questioning the reasons for and the fairness of the waiver. I would suggest that the information I seek is overwhelmingly in the public interest and it would be very difficult for the FSA to argue otherwise.

I look forward to your prompt response.

Your sincerely

crfx

[EXC]

Re: FSA Freedom of Information response

The FSA have have now refused to release any correspondence between
themselves and the OFT during the run-up to the test case anouncement.

Shame, as in their letter refers to their ''council's analysis of the strengths
and weaknesses of various options and scenerios put to the FSA'' which
would have been very interesting indeed.

[Celestine]

Re: FSA Freedom of Information response

"Disclosure of these exchanges would be likely to have a chilling effect on future co-operation between between public bodies"

LOL...Well they sure have chilled their relationship and trust with consumers.