• Section 44 (Prohibitions on Disclosure)
Section 44(1)(a) of FOIA states that information is absolutely exempt from disclosure if this is prohibited by law. Section 348 of FSMA restricts the FCA from disclosing ‘confidential information’ it has received in the course of carrying out its public function. FSMA allows exceptions to this in a few specific circumstances, but none of these apply to this request. Confidential information here is defined as non-public and non-anonymised information involving a person’s business or other affairs, which the FCA received in the course of carrying out its public function. It is also possible for “received” information to be embedded within information created by the FCA and such information is also exempt from disclosure under section 44 of FOIA. Consequently, the FCA is prohibited from disclosing to you any information which we received while performing our regulatory duties and which is not in the public domain or where the relevant consents have not been obtained. The FCA receives information from authorised firms about their business activities primarily through their regulatory returns. This information is then utilised in deciding the monitoring strategy that should be applied to that firm. As such, the disclosure of the portfolios to which firms are allocated would involve the disclosure of the business information we have received. So, while we can confirm that we hold records of the firms that are in each portfolio, we are unable to provide the information as to do so would disclose information received from the firms that constitutes confidential information received by the FCA in the exercise of its functions under the FSMA. If we disclosed this information, without the provider’s consent or the consent of the person the information is about (if different), we would be in breach of section 348 of FSMA. This would be a criminal offence. In many requests for information under FOIA we have to consider different factors to decide whether disclosing the requested information would be in the public interest or not. For this request, we have an ‘absolute’ exemption against supplying the information, and so we do not need to make this kind of consideration.
