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FOI reference - FOI 2016-06-10
Date - 10/06/2016

Request

Request 1

I am requesting information under the Freedom of Information Act (FoIA), following a letter from Chris Martin, trustee chairman of the BHS pension schemes, to a joint parliamentary select committee on 11 May 2016, regarding the schemes.

Please disclose details of all meetings and conference calls held between The Pensions Regulator (TPR) and the trustees since June 2014, detailing:

  1. the date
  2. the location (where applicable)
  3. the names of those in attendance or (on the conference calls)
  4. agenda and minutes of the meeting

Request 2

I am requesting information under the FoIA, following a letter from Chris Martin, trustee chairman of the BHS pension schemes, to a joint parliamentary select committee on 11 May 2016, regarding the schemes.

Please disclose all correspondence between TPR and the trustees since June 2014 regarding the sales process of BHS.

Request 3

I am requesting information under the FoIA on the BHS pension scheme. Please disclose details of all meeting held between TPR and Retail Acquisitions or associated companies and representatives since January 2014, detailing:

  1. the date
  2. the location
  3. the names of those in attendance
  4. agenda and minutes of the meeting

Request 4

I am requesting information under the FoIA on TPR's investigation into whether it would be appropriate to use our anti-avoidance powers in respect of' the sale of BHS to Retail Acquisitions.

Please disclose how much TPR has spent on external fees since the investigation was launched and also the names of the firms used / being used.

Response

Duty to confirm or deny whether TPR holds the information requested

I can confirm that we hold the information you have requested. However, we are unable to supply some of the information requested for the reasons set out below.

Information we are able to supply

First I think it is important to make you aware that much of the information you have requested is ‘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, those powers are also balanced by restrictions on onward disclosure of information provided to us. It is clear that information you have requested includes information which we received in the exercise of our statutory functions.

Furthermore, section 82(5) of the PA04 Act provides that it is a criminal offence to disclose such information except as permitted under that Act.

Whilst the 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.

However, the restriction under the PA04 Act referred to above is lifted where certain conditions are met further to section 82 (4)(a) or (b), as follows:

(4) For the purposes of this section and sections 83 to 87, 'restricted information' means any information obtained by TPR in the exercise of its functions which relates to the business or other affairs of any person, except for information

(a) which at the time of the disclosure is or has already been made available to the public from other sources, or

(b) which is in the form of a summary or collection of information so framed as not to enable information relating to any particular person to be ascertained from it

Taking into account the legislative provisions set out above I have outlined the information we are able to supply below, addressing each of your four requests individually.

Requests 1 and 3

We have produced a separate attachment Annex A (PDF, 50kb, 10 pages). This provides a timeline of the meetings and calls with the trustees to address ‘Request 1’ and meetings with Retail Acquisitions Limited and their associates to address ‘Request 3’. The timeline details:

  • the date and time
  • the location
  • names of those in attendance, or roles where names cannot be released due to data protection
  • subject
  • summary

Request 2

This information has been provided as Annex B (PDF, 24kb, 3 pages) which is a timeline of the correspondence regarding the sales process of BHS.

Request 4

To date we have relied extensively on in-house resource and expertise. The expenditure on external fees up to the 13 May is £49,131 these are split between:

  • legal: £19,410
  • non-legal: £29,721

With regard to your request for the names of firms used or being used since the launch of the investigation into the sale of BHS to Retail Acquisitions Ltd, please see further below.

Information we are not able to supply

Please find details of the information that we are unable to provide below. I have summarised the exemption(s) contained within the FoIA which we have applied individually to each of your requests.

Requests 1 and 3

The information requested in ‘Request 1’ and ‘Request 3’ includes (i) ‘restricted information’ under Section 82 PA04 Act as set out above, (ii) specific details of our regulatory investigation and (iii) personal data under the Data Protection Act 1998.

Section 44(1)(a) of the FoIA provides an absolute exemption from disclosure of any information if its disclosure (otherwise than under this Act) by the public authority holding it 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.

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 information caught by requests 1 to 3 are inextricably linked to our current investigation into the sale of BHS and enquiries around the BHS pension schemes, and therefore relate to an ongoing and live investigation. Releasing to the public at large detail about our investigation and related discussions would reveal unpublished information regarding our approach to such investigations. Releasing details of our 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 investigation. Disclosure would be likely to have an adverse effect on our ability to effectively carry out our statutory duties which would not be in the interest of schemes or their members.

We have applied this exemption to redact some information where its disclosure would be likely to prejudice the exercise of our investigative and regulatory functions for the purposes of determining whether a person has not complied with their legal obligations or is responsible for any improper conduct, or whether regulatory action is justified.

Public Interest

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 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.

As indicated earlier our investigation into the sale of BHS and the BHS pension schemes is still live and very much in the public domain at the moment. Public scrutiny relating to our investigation 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 would be likely to prejudice our ability to conduct investigations into whether regulated persons have engaged in unlawful activity or improper conduct or whether circumstances justify regulatory action. 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 focussed 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.

Accordingly, we have disclosed some information in summary format in line with the restricted information provisions and where we have ascertained there is no likely prejudice to the live investigation.

In relation to information we have not disclosed we consider the public interest in disclosing the information you have requested and to which we have applied the exemption, to be outweighed by the public interest in non-disclosure and maintaining the exemption under section 31(1)(g).

Section 40 – 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.

Request 2

Some information from 'Request 2' has been withheld due to the following exemptions under the FoIA being applied:

  • Section 40(2) –The names of persons not already in the public domain are exempt from disclosure under section 40(2) of the FoIA. Along with this, information contained within correspondence that relates to personal matters has also been withheld under this exemption.
  • Section 44(1)(a) – Restricted Information which is not already in the public domain or cannot be summarised in line with the provisions set out above have been withheld further to this exemption.

Request 4

The exemption under section 31(1)(g) and (2)(a)-(c) of FoIA applies to your request for names of the external firms used or being used, as the disclosure of this information would be likely to prejudice our 'live' investigation.

Public interest

We believe that it would be likely to prejudice our investigation if we were to disclose specific details of those firms who have been engaged to carry out particular tasks for TPR.

It is essential to ensure we are able to correspond freely and frankly with anyone (including external advisers) who are providing services to us as part of our ongoing regulatory investigation.

There is accordingly a very strong public interest in ensuring our investigative functions can be carried out and completed effectively and with efficacy, in confidence.

In relation to this aspect of your request therefore, we do not consider the general public interest in disclosing names of the firms which we have used or are being used in relation to the current investigation is stronger or greater than the public interest in maintaining the exemption for the reasons set out above.

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.

As you are aware there is an inquiry into the BHS Pension Scheme being carried out by the Work and Pensions Select Committee (WPSC) and various documents have been published, along with oral evidence in hearings with the committee. To see the latest releases please see the parliament website.

We do also provide details of FOI requests and our responses on our disclosure log.

It is important to note that any disclosures of information made in respect of BHS pension scheme to the WPSC have to be considered in light of the various legislative provisions set out in this response.

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