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Correspondence relating to Resort Group PLC in Cape Verde

FOI reference - FOI-4187
Date - 6 November 2019

Request

Please release all correspondence and documentation (including but not limited to emails, minutes of meetings and phone calls, letters etc) that relate to concerns about pensions investing in properties developed by the Resort Group plc in Cape Verde.

Response

I can confirm that we hold information falling within the scope of your request. However, we are unable to supply some of the requested information for the reasons set out below.

Information we are able to supply

Please find a link below to a copy of the Compulsory Review of our Determinations Panel’s determination regarding the London Quantum Retirement Benefit Scheme. This document refers to the Resort Group PLC on pages 9, 12, 13 and 14.

https://www.thepensionsregulator.gov.uk/-/media/thepensionsregulator/files/import/pdf/dn3104214.ashx

Information we are not able to supply

Any notes of meetings, telephone calls or correspondence which the Pension Regulator’s (TPR) holds in regard to the above case is exempt from disclosure under the FoIA as they are either restricted information, subject to legal professional privilege or their disclosure may adversely impact on law enforcement. Please find further details about these exemptions under the FoIA below.

Section 31 of FoIA - Law enforcement

Information you have requested is exempt under section 31(1)(g) of the FoIA, as its disclosure would or would be likely to prejudice the exercise of a public authority of its functions. The relevant aspects of section 31(2) being s31(2)(b): ‘the purpose of ascertaining whether any person is responsible for any conduct which is improper’ and s31(2)(c): ‘the purpose of ascertaining whether circumstances which would justify regulatory actions in pursuance of any enactment exist or may arise’ 

FoIA requires that the public interest is considered in maintaining this exemption. We have considered and concluded that the public interest in disclosure is outweighed by the public interest in non-disclosure and maintaining the exemption. This is due to the ongoing nature of our work on pension scams and our collective approach to gathering and using highly sensitive intelligence.

Section 42 of FoIA – Legal professional privilege

Information you have requested is also exempt under section 42(1) of the FoIA, which states that:

"Information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings is exempt information."

The common law principle of legal professional privilege (LPP) carries with it an inherent significant public interest as it is designed to maintain the confidentiality of communications between a lawyer and their client. This has been said to be “a fundamental condition on which the administration of justice as a whole rests” . It is important for there to be a free and confidential exchange of views for both individuals and public authorities and their legal advisors about their legal rights and obligations.

The weight attached to maintaining the exemption is increased in this case because the legal advice is both recent and the litigation to which it relates is still live at the time of this request.

To outweigh the public interest in maintaining LPP and therefore the exemption, there must be very strong public interest reasons for waiving privilege.
 
There is an accepted and understood public interest in transparency, accountability and improving the public’s understanding of our investigations. It is in the public interest to have a greater understanding of how we reach our decisions. However, that must be weighed against our function to protect the benefits of pension scheme members. Where we seek legal advice in relation to the exercise of our regulatory functions, it is in the public interest that the advice obtained is appropriate, and for this to happen we have to be able to be frank and open in seeking that advice.

Whilst there are arguments in favour of disclosure, none outweigh the inbuilt fundamental public interest in LPP. Disclosure of the information requested in this instance would be premature at best, as the matter to which it relates is live, and care needs to be taken not to interfere with or undermine the court process.   

In the circumstances, the public interest in maintaining the exemption in section 42(1) outweighs the public interest in disclosure.  We must remain free to seek and receive legal advice to ensure we exercise our functions and to engage in a free and frank exchange of views with Counsel in doing so, without fear of matters not intended for public consumption becoming public in a manner which is not appropriate and not conducive to our ability to effectively carry out our statutory functions. 

Section 44(1)(a) of FoIA – R estricted information under section 82 of the Pensions Act 2004 (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 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.