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Communications sent to the USS since 2017

FOI reference - FOI-4013

Date - 13 August 2019

Request

Please provide a copy of letters and emails sent by The Pensions Regulator (TPR) to the Universities Superannuation Scheme (USS) Limited and USS Investment Management Limited since January 2017 to date.

Response

I can confirm that we hold information contained in the documents that you have requested.

However, we are unable to supply some of the information contained within the documents that you requested for the reasons set out below (see ‘information we are not able to supply’). Where we are unable to supply information, we have made appropriate redactions.

Where documents containing information that you have requested are saved together with documents containing information that is beyond the scope of your request (for example email chains, containing emails from the USS to TPR), we have redacted the documents that are out of scope in their entirety.

Information we are able to supply

Please find attached a PDF bundle (available on request) containing information we are able to supply. Please note that due to the timescales of responding and the volumes of documents, I have provided a reasonable amount of the documents. However regardless of the number the following exemptions will still apply:

Information we are not able to supply

Section 21 – Information accessible to applicant by other means

I can confirm that we hold letters and emails sent by TPR to USS between January 2017 and 15 September 2017. However, it is exempt from disclosure under section 21 of the Freedom of Information Act (FoIA). This is because the information is accessible to you, as it is already in the public domain and can be accessed on our website.

Section 31 – Law enforcement

I can confirm that we hold the information you have requested. However, it is exempt from disclosure under section 31(1)(g) and (2)(b)–(c) of the FoIA.

Section 31(1)(g) and (2)(b)-(c) provides that:

Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice–

(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.

In exercising our functions with this objective in mind we conduct investigations, obtain advice and launch formal action. Releasing to the public at large the level of detail about our investigation and related discussions would reveal unpublished information regarding our risk model. Releasing details of our risk methodology, 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. Disclosure would have an adverse effect on our ability to effectively carry out our statutory duties. This would not be in the interest of schemes or their members.

The exemption at section 31(1)(g) 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.

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 (such as in cases like this, where a significant number of members are affected) publish reports regarding regulatory activity taken. This would happen at a time considered appropriate to do so and rarely during ongoing investigations and/or litigation. Therefore, I do not consider there is a public interest to be served in disclosing the information requested in light of the risks and likely prejudice identified. I therefore consider the public interest in disclosing the information you have requested to be outweighed by the public interest in maintaining the exemption under section 31(1)(g).

Section 40 – Personal information

This information is exempt from disclosure under section 40 (personal information) of the FoIA. This is because the information constitutes personal data as defined in the General Data Protection Regulations (GDPR). Disclosing this would not comply with the data protection principles set out in the GDPR, in particular the requirement for processing to be fair, lawful and transparent (Article 5 (1)(a)), as well as to comply with one of the lawful bases for processing in Article 6.

Section 44(1)(a) – restricted information under section 82 PA04

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.