FCA investigation/Prohibition order

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The Payment Systems Regulator Limited is registered as a limited company in England and Wales No. 8970864. Registered office: 25 The North Colonnade, Canary Wharf, London E14 5HS, United Kingdom

Switchboard 020 7066 1000

Web Site http://www.fca.org.uk (FCA); http://www.psr.org.uk (the Payment Systems Regulator Limited)

Our Ref: FOI5519

 

 

Dear Mr Raymond

 

Freedom of Information: Right to know request

 

Thank you for your request under the Freedom of Information Act 2000 (the
“Act”), dated 26 December 2017, for the following information:

 

“It was reported in Dec 2015 that [the individual named in your request]
left the boards of all of his AIM companies.

 

Has [the named individual] been/[are they] being investigated by the FCA
or any other UK financial authorities under the FCA's oversight, or [have
they] been served a prohibition order?”

 

Your request has now been considered, and we can neither confirm nor deny
whether the named individual has ever been or is being investigated by the
FCA, as this information (if held) would constitute the personal data of
the individual referred to. Under section 40 (Personal information) of the
Act, personal data of an individual is exempt information when disclosure
to a third party would breach the Principles of the Data Protection Act
1998 (“DPA”).

 

Further, we are of the view that to confirm or deny whether we hold this
information would, or would be likely to, prejudice also the exercise by
the FCA of its functions under FSMA, along with the commercial interests
of any person (including the named individual).  Therefore, we are unable
to confirm or deny under section 31 (Law enforcement) and section 43
(Commercial interests) of the Act whether or not we hold the specified
information.

 

For a detailed explanation as to why these exemptions apply please refer
to Annex A below.

 

Further, please note we are not in the position to answer your question
about investigations carried out by other UK financial authorities under
the FCA's oversight, as we do not oversee other financial authorities.

 

Lastly, I can confirm that no prohibition order was issued against the
individual in question.

 

The FCA has a policy of not commenting publicly on whether or not it is
investigating a particular firm/individual.  This policy is set out in the
FCA’s [1]Enforcement Guide (EG); see in particular [2]EG 6 on Publicity.

 

However, in the event that the FCA is investigating a particular
individual/entity and formal enforcement action is subsequently taken,
details of the action will generally be published on the FCA’s website in
the form of a Final Notice and associated press announcement.  This serves
to inform the public of the action taken and the reasons for that action.
Prohibition orders issued against individuals form part of the final
notices which are published on our website.

 

You can obtain further information regarding enforcement action from the
following places:

 

·                Information about those cases where we have taken
disciplinary action against individuals or firms since April 2013 may be
found on the FCA’s website [3]here.

 

·                Information about those cases where we have taken
disciplinary action against individuals or firms prior to April 2013 can
still be found on the FSA’s website [4]here.

 

·                The website of the [5]Upper Tribunal provides information
about the cases where our decision to take enforcement action has been
referred to the Tribunal.

 

 

Yours sincerely

 

 

Information Access Team

Financial Conduct Authority

 

 

Your right to complain under the FoI Act

 

If you are unhappy with the decision 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
response.

 

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: [6]www.ico.org.uk

 

 

 

Annex A

 

 

·                General right of access to information held by public
authorities

 

Under section 1(1)(a) of the Act, any person making a request for
information to a public authority is entitled to be informed in writing by
the public authority whether it holds information of the description
specified in the request. If the public authority holds information of the
type specified in the request, the person requesting the information is
entitled under section 1(1)(b) to have the information communicated to
them.  The rights in section 1(1)(a) and (b) are, however, subject to a
number of exclusions and exemptions, including the following:

 

·                     Section 40 (Personal Information)

 

Section 40(5)(b)(i) of the Act provides that the duty to confirm or deny
does not arise in relation to information which is (or if it were held by
the public authority would be) exempt information by virtue of section
40(2) if the confirmation or denial that would have to be given to meet
the FCA’s duty under the Act would itself contravene any of the principles
in the Data Protection Act 1998.

 

We have applied this exemption because the confirmation or denial that
would have to be given to satisfy your request would itself entail the
disclosure of personal data relating to the mentioned individual, which
would breach data protection Principle 1.  In particular, it would not be
lawful or fair to the individual concerned, who would not have had any
expectation that their personal data would be disclosed in such
circumstances.

 

·                Section 31 (Law enforcement)

 

The qualified exemption in section 31(1)(g) and 31(2)(c) of the Act
applies because, disclosure of the information requested would, or would
be likely to, prejudice the exercise by the FCA of its functions for the
purposes of ascertaining whether circumstances exist or may arise which
would justify regulatory action in pursuance of any enactment.

 

Section 31 is a qualified exemption and therefore we have balanced the
public interest for and against confirmation/denial, as required by the
Act.

 

Against maintaining the exclusion of the duty to confirm or deny:

 

•      There is a strong public interest in favour of transparency, and in
the public being aware of any enquiries, considerations or actions we may
(or may not) be taking in relation to the markets and/or firms and/or
individuals who are, or may be, operating in the financial services
industry.

 

•      Disclosure of the information (if it were to exist) would reassure
the public about the effectiveness of the regulatory approach taken by the
FCA, and demonstrate how the FCA responds to matters arising within the
sector it regulates.

 

•      Disclosure would also provide information (if it were to exist) to
consumers to assist them in making decisions about their dealings or
potential dealings with the markets, firms and individuals that are, or
may be, operating in the financial services industry.

 

In favour of maintaining the exclusion of the duty to confirm or deny:

 

•      There is a strong public interest in the FCA being able to carry
out its functions in the most effective manner possible.  Confirmation or
denial that we hold information falling within the scope of the request,
has the potential to mislead and prejudice the financial markets and
consumers, because either misconduct or a clean bill of health may be
inferred incorrectly from the mere fact that we hold or do not hold
information falling within the scope of the request.

 

•      In particular, this could also lead to widespread speculation which
could hinder and prejudice the progress of any current and/or future FCA
enquiries, considerations and/or action.  It could also affect the brand
and reputation of the market in the absence of due process having been
followed - i.e. in the absence of any formal public announcement and
without the market having had the opportunity to comment.

 

·                Confirmation or denial that we hold the information
(which may or may not be the case) could, in addition, undermine the FCA’s
credible deterrence approach and hence its ability to meet its market
integrity objective.  This, in turn, could seriously undermine the FCA’s
functions.

 

Having balanced the public interest, for the reasons set out above, we are
satisfied that overall the balance of the public interest in this case
comes down in favour of maintaining the exclusion of the duty to confirm
or deny under section 31(3); and in neither confirming nor denying that we
hold any information that falls within the scope of your request.

 

 

·                Section 43 (Commercial interests)

 

Section 43(3) of the Act provides that the duty to confirm or deny does
not arise if the confirmation or denial that would have to be given to
comply with section 1(1)(a) would, or would be likely to, prejudice the
commercial interests of any person (including the public authority holding
it) mentioned in section 43(2).

 

The commercial interests of the mentioned individual could be harmed by
confirming whether or not we hold the information requested. Were it to be
the case (which we cannot confirm) that we hold any of the information
requested, a confirmation that this was the case could lead to unfair or
unjustified adverse comment and speculation in connection with the
individual involved and any firms they may have been related to. This
could affect the brand and reputation of the relevant individual and firms
in the absence of due process having been followed - i.e. in the absence
of any formal finding of misconduct and without the individual or firms
having had the opportunity to comment.  Any loss of confidence could have
serious, adverse consequences for the individual and firms, as well as
their stakeholders, including employees, investors and creditors.

 

There is a strong public interest in legitimate commercial interests of
firms and individuals not being undermined. This is unless and until such
time as there has been any formal finding of misconduct, following a full
investigation (which may or may not be the case in this instance) and
details of any such investigation are permitted to be made public under
FSMA.

 

Section 43 is a qualified exemption and therefore we have balanced the
public interest for and against confirmation/denial, as required by the
Act.

 

Against maintaining the exclusion of the duty to confirm or deny:

 

·                There is a strong public interest in favour of
transparency, and in the public being aware of any enquiries,
considerations or actions we may (or may not) be taking in relation to the
markets and/or firms and/or individuals who are, or may be, operating in
the financial services industry.

 

·         Disclosure of the information (if it were to exist) would
reassure the public about the effectiveness of the regulatory approach
taken by the FCA, and demonstrate how the FCA responds to matters arising
within the sector it regulates.

 

·         Disclosure would also provide information (if it were to exist)
to consumers to assist them in making decisions about their dealings or
potential dealings with the markets, firms and individuals that are, or
may be, operating in the financial services industry.

 

In favour of maintaining the exclusion of the duty to confirm or deny:

 

·  Confirmation or denial that we hold information falling within the
scope of the request, has the potential to mislead and prejudice the
financial markets and consumers, because either misconduct or a clean bill
of health may be inferred incorrectly from the mere fact that we hold or
do not hold information falling within the scope of the request.

 

·  This could also lead to widespread speculation which could hinder and
prejudice the progress of any current and/or future FCA enquiries,
considerations and/or action.  It could also affect the brand and
reputation of the market in the absence of due process having been
followed - i.e. in the absence of any formal public announcement and
without the market having had the opportunity to comment.

 

Having balanced the public interest for and against maintaining the
exclusion of the duty to confirm or deny, as required by the Act, in this
case, in our view the public interest lies in favour of maintaining the
exclusion for the reasons set out above.

 

 

 

This communication and any attachments contain information which is
confidential and may be subject to legal privilege. It is for intended
recipients only. If you are not the intended recipient you must not copy,
distribute, publish, rely on or otherwise use it without our consent. Some
of our communications may contain confidential information which it could
be a criminal offence for you to disclose or use without authority. If you
have received this email in error please notify [email address]
immediately and delete the email from your computer. Further information
on the classification and handling of FCA information can be found on the
FCA website
(http://www.fca.org.uk/site-info/legal/fc...).

The FCA (or, if this email originates from the Payment Systems Regulator
Limited, the FCA on behalf of the Payment Systems Regulator Limited / the
Payment Systems Regulator Limited) reserves the right to monitor all email
communications for compliance with legal, regulatory and professional
standards.

This email is not intended to nor should it be taken to create any legal
relations or contractual relationships. This email has originated from the
Financial Conduct Authority (FCA), or the Payment Systems Regulator
Limited.

The Financial Conduct Authority (FCA) is registered as a limited company
in England and Wales No. 1920623. Registered office: 25 The North
Colonnade, Canary Wharf, London E14 5HS, United Kingdom

The Payment Systems Regulator Limited is registered as a limited company
in England and Wales No. 8970864. Registered office: 25 The North
Colonnade, Canary Wharf, London E14 5HS, United Kingdom

Switchboard 020 7066 1000

Web Site http://www.fca.org.uk (FCA); http://www.psr.org.uk (the Payment
Systems Regulator Limited)

References

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