Whether the Bank was justified in refusing access to three records relating to an investigation concerning Bloxham Stockbrokers on the basis that the Act does not apply to them, pursuant to Schedule 1, Part 1(b)(i) and whether it was justified in decision to refuse access, under section 15(1)(a), to any other relevant records
OIC-110624-M1D1Z8
Background
In 2012, the Central Bank of Ireland (the Bank) carried out an investigation into financial irregularities in the management of Bloxham Stockbrokers, a regulated entity. Subsequently, the Bank directed Bloxham to cease all regulated activity, and its business was transferred to another stockbroking firm. The applicant is a Ward of Court whose funds were handled by Bloxham.
In 2016, I issued a decision following review of a decision of the Bank to refuse access to three records it identified as coming within the scope of a request made by the applicant, through his solicitors, for any summary or final report following the Bank's investigation into Bloxham, detailing the reasons for the closure of the firm in June 2012, and in particular, the reason why the Bank imposed directions on the firm to cease all regulated activities. In my decision (Case 160399), I affirmed the Bank’s refusal of the request on the ground that the FOI Act did not apply to the records in question, pursuant to Schedule 1, Part 1(b)(i)(II) of the Act.
In a request dated 8 April 2021, the applicant, through his solicitor, submitted that same request on the ground that the report has since been finalised and can now be released. On 12 May 2021 the Bank issued a decision wherein it refused access to any summary or final report under section 15(1)(a) on the ground that no such report exists. However, it said that the three records that were the subject of my review in case 160399 contained relevant information. It refused access to those records on the ground that the Act does not apply to them.
On 25 May 2021, the applicant sought an internal review of the Bank’s decision. The applicant argued that other records apart from the three identified on foot of the original request should exist and also suggested that the passage of time has changed the situation to allow for the release of the three records to which access was refused. On 17 June 2021, the internal reviewer affirmed the refusal of the three records.
On 15 July 2021, the applicant sought a review by this Office of the Bank’s decision, in which it was suggested that the reasons for refusal of the three records may have changed with the passage of time.
I have now completed my review in accordance with section 22(2) of the FOI Act. During the review, both parties were invited to make a submission to this Office. While the Bank made a submission, the applicant chose not to do so. In carrying out my review, I have had regard to the correspondence between the Bank and the applicant as set out above, to the applicant’s comments in his application for review and to the submissions made by the Bank in support of its decision. I have also had regard to the contents of the records concerned and to my earlier decision in case 160399. I have decided to conclude this review by way of a formal, binding decision.
Scope of the Review
In the decisions taken in this matter the Bank argued that the Act does not apply to the three records it identified as coming within the scope of the applicant’s request, pursuant to Schedule 1, Part 1(b)(i). In addition, in its submission to this Office, it argued that the provisions of sections 30, 31, 32, 35, 37, 41 and 42 are also of relevance.
This review is therefore concerned with (i) whether the Bank was justified in refusing access to the three records on the basis that the Act does not apply to them, pursuant to Schedule 1, Part 1(b)(i) or that they are otherwise exempt by virtue of various provisions of the Act, and (ii) whether the Bank was justified in decision to refuse access, under section 15(1)(a), to any other relevant records.
Analysis and Findings
The three records
Section 6(2)(a) of the FOI Act provides that an entity specified in Schedule 1, Part 1 of the Act shall, subject to the provisions of that Part, be a public body for the purposes of the Act. Schedule 1, Part 1 contains details of bodies that are partially included for the purposes of the Act and also details of the certain specified records that are excluded. If the records sought come within the description of the exclusions in Part 1, then the Act does not apply and no right of access exists.
Schedule 1, Part 1(b)(i) provides that the right of access does not apply to records held by the Bank 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 [Bank], or is otherwise regulated by the [Bank],
that the [Bank] 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).
The three records identified by the Bank are an internal email, an email between the Bank and its external legal advisers with attachments, and an internal memorandum. The records at issue relate to the discovery of suspected financial irregularities in Bloxham and the subsequent investigation and enforcement action taken by the Bank against the firm.
In case 160399, I found that Schedule 1, Part 1(b)(i)(II) applied to the records. It seems to me that the only conditions under which that section would no longer apply would be if the information at issue had lost its necessary confidential quality. In the course of the review by this Office, the Investigator sought specific submissions from the Bank as to whether, in light of the passage of time since the applicant’s first request, the information at issue may have lost its confidential quality.
In response, the Bank stated that the information contained in the records is not in the public domain and it remained of the view that the information was inherently confidential. By way of background, the Bank recalled the strict confidentiality obligations imposed on it by both national and European legislation that it argued as being key to ensuring that it can perform its regulatory role. In particular, the Bank highlighted section 33AK of the Central Bank Act 1942 which prohibits the disclosure of certain prescribed confidential information and provides that a failure to do so is an offence liable to fine or imprisonment. The Bank further argued that if it were not to strictly adhere to its confidentiality obligations then this would hinder the Bank in securing information from regulated financial providers in a timely manner and could impede the Bank in obtaining information from other European competent authorities. In sum, the Bank said that it remains of the view that the information contained in the three records is confidential and the sensitivity of the information has not changed since the decision in case 160399.
Having considered the matter, I am satisfied that the information contained in the three records has retained its confidential quality. As such, I find that the Act does not apply to the records, pursuant to Schedule 1, Part 1(b)(i)(II). Accordingly, it is not necessary for me to consider the applicability of any other sections or provisions of the Act. I find that the Bank was justified in refusing access to the three records on the ground that the Act does not apply to them, pursuant to Schedule 1, Part 1(b)(i)(II).
Do other relevant records exist?
As I have explained above, in his application for internal review, the applicant questioned whether the Bank had identified all records relevant to his request. Section 15(1)(a) of the Act provides that an FOI body may refuse to grant a request where the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This means that we must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
During the course of the review, the Investigator provided the applicant with details of the Bank’s submission wherein it explained why no further relevant records exist. In summary, the Bank explained that no summary or final report of the type sought was ever created and that no further relevant records were created since the pervious request in 2016.
It recalled that it engaged extensively with the applicant’s representative at that time of the processing of the first request. It said there was extensive engagement between the FOI Unit and the representative in order to clarify the request. It said that during these discussions, the representative was informed that the Central Bank holds very large volumes of files on the investigation into Bloxham. It said the representative indicated that the applicant was not seeking each and every record on the matter and did not want to receive large volumes of records, rather what was being sought was a high level summary or overview of what irregularities existed which caused the Central Bank to make the decision to take action against the firm. It said the representative indicated that the information sought was information that may point to negligence or wrong-doing by the firm.
While the applicant, in response, suggested it was incredulous that a firm of Stockbrokers could have its regulatory status revoked by the Bank, resulting in the immediate closure of the Firm and there be no written record / summary of the reasons for same, he also said he did not wish to make any further submissions. It is important to note that it is not the Bank’s position that no records exist that contains reasons for the actions taken. Rather its position is that there was no report of the type sought created, and that three records containing such information do, indeed, exist but that the Act does not apply to them.
Having regard to the Bank’s submission, I find that it has taken all reasonable steps to ascertain the whereabouts of relevant records in this case. I find, therefore, that it was justified in refusing access, under section 15(1)(a), to any further relevant records other than the three records already identified.
Decision
Having carried out a review under section 22(2) of the Act, I hereby affirm the decision of the Bank in this case.
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