FOI reference - FOI 2018-02-19(a)
Date - 19/02/2018
A spokesperson from The Pensions Regulator (TPR) was recently quoted in the FT commenting on the size of the dividend payments made by Carillion relative to the deficit recovery payments that it was making.
The spokesperson suggested that the ratio between these two numbers was much less extreme for Carillion than for other companies. From this, and from the analysis in the Department for Work and Pensions (DWP) Green Paper on defined benefit (DB) pensions, I infer that TPR has undertaken scheme-by-scheme analysis of the relative size of dividends and deficit repair contributions (DRCs), over a period of time.
Under the terms of the Freedom of Information Act (FoIA) I would be grateful if you would supply me with the information that TPR has collated on the size of scheme dividends relative to deficit recovery contributions at a scheme level, and for all years for which you have collated the data.
I can confirm that we hold information falling within the scope of your request, however, we are unable to supply the information requested for the reasons set out below.
Information we are not able to supply
We are unable to disclose scheme dividend information at a scheme level as it is considered exempt under section 41 of FoIA. We obtained the information requested from a contracted third party. TPR’s Licence Agreement with the third party provides that the data is provided for internal use only. Disclosure of this data to a further third party is expressly prohibited and would be a breach of confidence as well as a breach of contract.
Section 41, relates to information provided in confidence and states:
Information is exempt information if:
- it was obtained by the public authority from any other person (including another public authority),
- the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person
Section 41(1)(a) requires that the information in question was obtained from any other person. The information in question has been obtained by us from a third party company, so this part of the exemption is therefore satisfied.
Section 41(1)(b) requires the disclosure by us to constitute an actionable breach of confidence. So the information must have the necessary quality of confidence, and in our opinion it does. This exemption is absolute and does not require a public interest assessment be undertaken.
The remaining information requested, deficit recovery contributions at a scheme level, is considered exempt under section Section 44(1)(a) of FoIA.
As we have been given strong powers to demand documents and other information from trustees, employers and others, those powers are also balanced by restrictions on how we disclose the information provided to us. The type of information you have requested would be 'restricted information'. Restricted information is defined at section 82(4) of the Pensions Act 2004 (PA04) as: 'information obtained by the Regulator in the exercise of its functions which relates to the business or other affairs of any person’.
Under section 82(5) of the PA04 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, section 44(1)(a) of the FoIA provides an absolute exemption to the requirement to disclose any information if its disclosure is prohibited by or under any enactment. In this case, section 82 of the PA04 prohibits disclosure and we are unable to disclose the requested information. This exemption is absolute and does not require a public interest assessment be undertaken.
Duty to provide advice and assistance
We have conducted analysis historically and continue to do so in relation to FTSE350 sponsored DB schemes. Here is the link to the most recent DB annual funding statement analysis (PDF, 205kb, 36 pages). We would refer you to page 19 in particular of the analysis. We would also draw your attention to the some of the simplifications and assumptions around the method that has been used to produce the analysis. This is contained on pages 29 onwards of the publication.