Whether the Central Bank was justified in refusing access, pursuant to Schedule 1, Part 1(b)(i) of the FOI Act, to certain records relating to a complaint submitted by the applicant in relation to a financial services company

6 April 2023 

Background

This case has the same background as a decision issued by the Information Commissioner on 2 June 2017 in caseOIC-160474.  In sum, it relates to complaints made to the Central Bank concerning the investigation of a financial services company [Company X] regulated by the Bank.

In the current case, the applicant submitted a request to the Bank on 24 January 2022 for a copy of certain documentation that the Bank provided to any of seven identified parties and -�any other third party-�. The documentation referenced included:

1. A letter of 19 July 2011 he sent to a member of Dáil Éireann outlining complaints in relation to the investigation into Company X;
2. Documentation released under his earlier FOI requests; and
3. Documentation released under his earlier Personal Data Requests

With regard to part 1 of his request, the applicant indicated that the correspondence also included a reference to a separate company; Company Z. In addition, the applicant-�s correspondence made specific reference to judicial proceeding regarding Company Z. In the course of its initial correspondence with the applicant, the Bank indicated that the FOI Unit would process parts 1 and 2 of his request as outlined above, while the Data Protection Unit would separately process part 3 of his request. 

On 4 March 2022 the Bank refused the request pursuant to Schedule 1, Part 1(b)(i) of the Act, which essentially excludes certain records from the scope of the FOI Act. It said that any correspondence it may or may not have had with any of the third parties, named or otherwise, relating to a regulated entity would fall within the exclusion. It did not identify any specific records to which access was refused.

On 7 March 2022 the applicant sought an internal review of that decision, following which the Bank affirmed its refusal of the request.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the submissions made by the applicant and the Central Bank during the review. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

In the course of its correspondence with this Office, the Bank indicated that it interpreted the applicant-�s request to mean that he was seeking access to records relating to instances where the Central Bank may have forward the documents referred to at parts 1 and 2 of his request to one of the eight named entities.  Having considered the matter, I am satisfied that this is an appropriate interpretation of the applicant-�s request.

In addition, in the course of the correspondence with this Office the Bank indicated that it considered sections 35(1)(a), section 32(1)(b), section 41(1)(a) and section 42(i) to be of relevance in this case. 

The scope of this review is therefore concerned with whether the Central Bank was justified in refusing access to any records falling within the scope of the applicant-�s request on the basis that the FOI Act does not apply to the records sought, pursuant to Schedule 1, Part 1(b)(i), or in the alternative that sections 35(1)(a), section 32(1)(b), section 41(1)(a) and section 42(i) apply. 

Analysis and Findings

As any record falling within the ambit of Schedule 1, Part 1(b)(i) is excluded from the scope of the FOI Act, I consider it appropriate to consider that provision first. 

Schedule 1, Part 1(b)(i)

Schedule 1, Part 1(b)(i) provides that the Central Bank is not a public body for the purposes of the FOI Act in relation to:

(i) records held containing -�

i. confidential personal information relating to the financial or business affairs of any individual, or

ii. confidential financial, commercial or regulatory information relating to the business affairs of any person who holds or has held or who has applied for a licence, authorisation, approval or registration from the Central Bank of Ireland, or is otherwise regulated by the Central Bank of Ireland,

that the Central Bank of Ireland has received for the purposes of performing, or in the discharge of, any of its statutory functions (other than when that information is contained in records in summary or aggregate form, such that persons cannot be identified from the record)-�

In its submission to this Office the Central Bank argued that Schedule 1, Part 1(b)(i) applies in respect of the records sought. It said the applicant is seeking to determine what, if any, exchange of information on certain records relating to Company Z took place between the Central Bank and the eight named entities. It said that responding to such a request for information/records by confirming such records exist or not would, in itself, result in the disclosure of confidential, regulatory information, the type of which falls within the exclusion set out at Schedule 1, Part 1(b)(i).

The Bank further argued that were such records to exist they would relate to confidential correspondence between the Central Bank and various entities regarding a regulated entity.  It said the Bank must be afforded absolute confidentiality in its exchange of information and communications with the named entities and other third parties to ensure the Bank can carry out its regulatory functions and investigations in an effective manner. It added that even the confirmation of the existence or non-existence of such communications with the third parties listed in the request would be the type of information that Schedule 1 excludes from the Act. 

In addition, the Bank said that Company Z was authorised by the Central Bank as an investment firm under the European Union (Markets in Financial Instruments) Regulations 2017 (S.I. No 375 of 2017) and that it was registered as an insurance, reinsurance or ancillary insurance intermediary under the European Union (Insurance Distribution) Regulations, 2018 (S.I. No 229 of 2018). The Bank further indicated that it receives information from a variety of sources, including reports from financial entities, inspections of financial entities, members of the public, whistleblowers etc. It said such information is received by the Bank because it is the regulator of financial service providers and as such, is therefore received for the purposes of performing its statutory functions. It added that the Bank-�s statutory functions are provided for in the Central Bank Act 1942 and a variety of other Irish and EU legislation. It said that Bank-�s functions relating to the receipt of whistleblowing reports are provided for by Part 5 of the Central Bank (Supervision and Enforcement) Act 2013 and more recently by the Protected Disclosures Act 2014. It said the letter referred to by the applicant was received by the Bank because of its statutory functions. Finally, the Bank referred to the comments of the Information Commissioner in Case OIC-160474 referred to above as follows:

-�I further note that it is apparent that the complaints were forwarded to the Central Bank for investigation by a Teachta Dála and the ECB in the first place because of the Central Bank's statutory role in the matter as the financial regulator in Ireland. Thus, it seems to me that the complaints were indeed received by the Central Bank -�for the purposes of performing, or in the discharge of, any of its statutory functions"

In his application to this Office the applicant stated that he did not write the letter referred to in part 1 of his request for the purpose of enabling the Bank to discharge its statutory obligations in regulating financial services companies. He said, however, that he wanted this Office -�to establish whether this paperwork was provided to the parties involved in either the prosecution or defence of the forthcoming criminal trial concerning [Company Z]-�.

I am satisfied that the applicant has sought access to records relating to instances where the Central Bank may have forward the documents referred to at parts 1 and 2 of his request to one of the eight named entities in connection with or in the context of the judicial proceedings in relation to Company Z. With this in mind, and having regard to the Bank-�s submissions on the matter, I am satisfied that if records falling within the scope of the applicant-�s request were to exist, then Schedule 1, Part 1(b)(i) would apply to them.

I am satisfied that such records would properly be regarded as containing -�confidential financial, commercial or regulatory information relating to the business affairs of any person who holds or has held or who has applied for a licence, authorisation, approval or registration from the Central Bank of Ireland-�. Section 18 of the Interpretation Act 2005 stipulates that a -�person-� includes a body corporate. As both Company X and Company Z were such body corporates I am satisfied that they were legal persons.

Moreover, notwithstanding the applicant-�s claims, I am satisfied that any that records falling within the scope of the applicant-�s request would, by their very nature, contain relevant information that the Central Bank received, as the regulator of financial service providers, for the purposes of performing, or in the discharge of, any of its statutory functions.

For the sake of completeness, I note that Schedule 1, Part 1(b)(i) does not apply where the information is contained in records in summary or aggregate form, such that persons cannot be identified from the record. In circumstances where the applicant is aware of the identity of the companies concerned, I am satisfied that were any records to exist, the exception would not be applicable.

Consequently, as I am satisfied that Schedule 1, Part 1(b)(i) would apply to any records falling within the scope of the applicant-�s request were such records to exist, I find that the Bank was justified in refusing the request in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Central Bank-�s decision to refuse the applicant-�s request for certain records pursuant to Schedule 1, Part 1(b)(i) of the Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
 

Stephen Rafferty
Senior Investigator