FOI reference - FOI 2016-01-15
Date - 15/01/2016
Could you forward all correspondence between yourselves and Sir Philip Green or his advisors in the last year.
Duty to confirm or deny whether TPR holds the information requested
I can confirm that we hold the correspondence described in your request and we have interpreted your request as a request for all of the information contained within the correspondence.
However, we are unable to supply the correspondence you requested for the reasons set out below.
Information we are not able to supply
Please find details of the information that we are unable to provide below and the exemptions we have applied.
First I think it is important to make you aware that the correspondence you have requested contains largely ‘restricted information’ within the meaning of section 82 of the Pensions Act 2004 (PA04). Restricted information is defined at section 82(4) as 'information obtained by the Regulator in the exercise of its functions which relates to the business or other affairs of any person’.
As a regulator we have been given strong powers to demand documents (or other information) from trustees, employers and others, in order to be able to carry out our statutory functions, those powers are also balanced by restrictions on onward disclosure of information provided to us. The correspondence you have requested contain within them information which we received in the exercise of our statutory functions.
Section 82(5) of the PA04 Act provides that it is a criminal offence to disclose such information except as permitted under that Act. There are no applicable gateways to allow disclosure of restricted information further to a Freedom of Information request.
Whilst the Freedom of Information Act (FoIA) is based on the presumption of releasing information, there are exemptions to disclosure that must be applied if another enactment prohibits disclosure of information. Section 44(1)(a) of the FoIA provides an absolute exemption to the requirement to disclose information if its disclosure (otherwise than under the FoIA) is prohibited by or under any enactment. This exemption has been applied to information falling within your request which is ‘restricted information’; it is absolute and does not require a public interest assessment be undertaken.
This exempts from disclosure personal data as defined in the Data Protection Act 1998 (DPA) where certain conditions are met. We consider that disclosure of the names of persons not already in the public domain and who would not have the expectation that their names would be made public would breach the Data Protection Principles primarily the requirement to be fair and lawful in handling personal data. This information is, therefore, exempt from disclosure under section 40(2) of the FoIA. Along with the names of such individuals, information contained within correspondence that relate to private matters has also been withheld under section 40(2) FoIA for the same reasons.
Section 31(1)(g) and (2)(b)-(c) of the FoIA exempts information from disclosure if its disclosure under FoIA would, or would be likely to, prejudice
(1)(g) the exercise by any public authority of its functions for any of the purposes specified in subsection (2)
(2)(b) the purpose of ascertaining whether any person is responsible for any conduct which is improper
(2)(c) the purpose of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise
Our objectives under section 5 of the Pensions Act 2004 include the protection of members’ benefits under occupational and personal pension schemes; to reduce the risk of circumstances arising in which claims may be made on the Pension Protection Fund; and to promote and improve the understanding and good administration of work-based pension schemes.
With this objective in mind, in exercising our functions we conduct investigations, obtain advice and launch formal action. The correspondence requested and any information within them is inextricably linked to our investigation into the sale of BHS and the enforcement action in relation to the BHS pension schemes, they therefore relate to an ongoing and live enforcement case. Releasing to the public at large details about our investigation and related discussions would reveal unpublished information regarding our approach to such regulatory actions which is not in the public interest. Releasing details of our investigatory processes, tactics and other strategic decisions is not in the public interest as it could enable persons to take undue advantage of this information to try and evade regulatory action. This is a particular concern for us in light of our ongoing case. Disclosure would be likely to prejudice our ability to effectively carry out our statutory duties which would not be in the interest of schemes or their members.
The exemption at section 31(1)(g) for the purposes set out in (2)(b) and (c) of the FoIA is a qualified exemption which requires a public interest test be carried out. The 'public interest' means the 'public good' and not just what is of interest to the public or the private interests of particular requesters.
Public good includes assessing competing demands. We consider the public interest in allowing public bodies to conduct investigations without disclosure of information that is germane to our investigations and enforcement cases to be of paramount importance. We are also conscious of the likely negative impact upon those being investigated who have not and may not be found to be responsible for any wrongdoing and towards whom duties of procedural fairness exist.
As indicated earlier our investigation into the sale of BHS and subsequent enforcement action in relation to the BHS pension schemes is still live and very much in the public domain at the moment. However, public scrutiny of the details of our investigation and enforcement case whilst they are ongoing could hinder us from being able to freely and efficiently carry out the actions necessary to obtain the best outcome for the schemes and members.
For these reasons, it is clear that disclosure of the correspondence requested, which would in turn disclose information about the conduct of the investigations and the enforcement case, would be likely to prejudice our ability to ascertain whether regulated persons have engaged in unlawful activity or improper conduct or whether circumstances exist which justify regulatory action and may prejudice achievement of successful outcomes in any regulatory or enforcement action taken. This would be to the detriment of scheme members and beneficiaries.
We recognise the general public interest in promoting transparency, accountability and public understanding in how we carry out our functions. This is why we, where possible and when we consider it appropriate, publish reports regarding regulatory activity taken under section 89 of PA04.
Publication would happen at a time considered appropriate to do so and rarely during ongoing investigations and / or litigation. In this particular situation we have exceptionally made some information available to the public through the Work and Pensions Select Committee. However, we consider that to release any more information at this stage is not likely to increase transparency or understanding of our actions. We believe further disclosures would be likely to prejudice our ability to remain impartial and focused on securing the best outcomes for the scheme and its members, including holding the right persons (by this we mean an individual, company, or other entity which has legal rights and is subject to obligations) to account.
In relation to information we have not proactively disclosed about the BHS case, we consider the public interest in disclosing wholesale the correspondence you have requested and the information contained within them is outweighed by the public interest in non-disclosure and maintaining the exemption under section 31(1)(g).
Duty to provide advice and assistance
I am mindful of the duty to provide advice and assistance to requesters, as far as it is reasonably practicable to do so.
Submissions have been made to the Work and Pensions and Business, Innovation and Skills Committees. This includes information provide by us, where we had legislative provisions to do so. This information is available on the parliament website.