Whether the FSPO was justified in refusing access to decisions that it did not publish, following its investigations of complaints under the provisions of the FSPO Act 2017, and to information about why those decisions were not published

19 January 2024

Background

The FSPO publishes decisions on its website resulting from its investigation of complaints concerning financial service providers. However, certain decisions are not published. This case has its background in those cases that are not published by the FSPO. On 8 May 2023, the applicant emailed the FSPO seeking assistance about locating a particular FSPO decision that he could not find on the database of decisions held on the FSPO website. In response, the FSPO said that in limited circumstances, where a decision cannot be suitably anonymised, it is not published to its online Database of Decisions (the database).

On 26 May 2023, following further communications between the parties on the matter, the applicant made an FOI request to the FSPO for:

• all decisions made by the FSPO that are NOT published on the FSPO public database. The applicant said that the decisions he is interested in relate to the misselling of long term products and that he wanted this information from 2010 or whenever the FSPO started publishing decisions, whichever is the latest.
• The applicant also requested any information held as to why these decisions were omitted from the database. The applicant also asked if the sequence of decisions on the public database records a missing decision, could the FSPO explain why that decision does not exist for a particular decision number (the same case number referred to by the applicant in his initial query on 8 May 2023).

On 14 June 2023, the FSPO refused the applicant's request under Schedule 1 Part 1(aj) of the FOI Act (as amended by Section 76 of the Financial Services and Pensions Ombudsman Act 2017) on the basis that its records concerning the mediation, investigation or adjudication of complaints are not subject to the FOI Act. In its decision, the FSPO provided the applicant with information about why some decisions are omitted from the database. On 19 June 2023, the applicant made a request for an internal review of the FSPO's decision. The applicant said that he did not accept that the decisions he sought are so different to the other decisions on the FSPO website that they cannot be suitably redacted to ensure confidentiality is ensured. He stated that this conduct by the FSPO is unconstitutional and permits the FSPO to act in a secretive manner with respect to certain decisions it chooses not to publish.

On 11 September 2023, the FSPO affirmed its original decision and said that when publishing decisions, it must, "in accordance with s62(2) of the FSPO Act, ensure that a complainant cannot be identified by name, address or otherwise, ensure that a provider cannot be identified by name or address and ensure compliance with the Data Protection Acts. In order to preserve the anonymity of complainants, the FSPO examines the contents of every legally binding decision which has been issued, to determine whether it includes details of unique or unusual circumstances or events. The FSPO assesses whether the contents of any decision, taken together, could make the individual complainant(s) "otherwise" identifiable to others who may know them. Where that possibility remains, even when appropriate redactions have been applied, a legally binding decision may be withheld from publication. Examples include decisions which reference unusual health conditions, unique combinations of circumstances, or particularly sensitive personal issues."

On 20 September 2023, the applicant made an application for review to this Office, it which he said he did not believe that any decisions of the FSPO cannot be redacted or amended to ensure the confidentiality of the parties involved.

During the course of this review the Investigating Officer wrote to the applicant and provided him with details of the FSPO's submission setting out the reasons why it refused his request under Schedule 1 Part 1(aj) of the FOI Act. In his reply, dated 15 January 2024, the applicant said he is seeking decisions that were not published and reiterated his arguments about the constitutionality of the FSPO not publishing certain decisions.

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 correspondence outlined above and to the submissions made by both parties. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the FSPO was justified in its decision to refuse access to the records sought by the applicant on the ground that the FOI Act does not apply to the records sought, pursuant to Schedule 1, Part 1(aj) of the FOI Act (as amended by the FSPO Act 2017).

Preliminary Matters

In his correspondence with this Office the applicant outlines why he does not accept the FPSO's decision or its reasoning not to publish all decisions on its website. It is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. As such, while I note that the applicant does not accept the FSPO's practice not to publish decisions in certain cases, our role is confined to reviewing the FSPO's decision on access to those records he sought under the FOI Act.

Analysis and Findings

For the benefit of the applicant, I should explain at the outset that the FOI Act applies only to a very limited category of records held by the FSPO. Regardless of the applicant's views as to whether there may be compelling grounds for the release of certain records, if the FOI Act does not apply to the records sought, then no right of access exists and this Office has no further role in the matter. The position of the FSPO is that the information requested by the applicant in this case falls outside the scope of the FOI Act.

Schedule 1, Part 1(aj) of the FOI Act

Section 6(2) of the FOI Act provides that any organisation specified in Schedule 1, Part 1 of the FOI Act shall, subject to the provisions of that Part, be a public body for the purpose of the Act. Schedule 1, Part 1 contains details of bodies that are partially included for the purposes of the Act and also details certain specified records that are excluded. If records sought come within the description of the exclusions on Part 1, the FOI Act does not apply and no right of access exists to such records held by the body.

Schedule 1, Part 1 (aj) of the FOI Act provides that the FSPO is not a public body for the purposes of the FOI Act insofar as it relates to records concerning the mediation, investigation or adjudication of a complaint carried out by the Financial Services and Pensions Ombudsman under the Financial Services and Pensions Ombudsman Act 2017. Essentially, any records held by the FSPO that relate to the mediation, investigation or adjudication of a complaint carried out by it are excluded.

In its submissions to this Office, the FSPO stated that the records sought by the applicant include unpublished decisions of the FSPO issued at the conclusion of the formal investigation of individual complaints made by consumers, and information with respect to these unpublished decisions. The FSPO stated that these are records which concern the adjudication of complaints carried out by the FSPO. It stated that in order to adjudicate on a complaint, the FSPO must first undertake a detailed examination and investigation of the evidence and the merits arising in the complaint. The FSPO stated that where a complaint is made to it by an individual, that complaint can be resolved as part of its statutory complaint investigation process.

The FSPO said that where a complaint does not resolve as part of its meditation process, it is referred to the formal investigating process. The FSPO stated that on completing an investigation of a complaint it issues a decision which is legally binding on the parties to that complaint. The FSPO stated that the records sought by the applicant, insofar as they relate to "all decisions made by the FSPO that are not published on the FSPO public database" are inextricably linked to the examination and investigation of complaints carried out by the FSPO. It stated that any published decision will, due to its very nature, contain information regarding the investigation and adjudication of a complaint. It stated that as a result of the above such a decision is exempt under Schedule 1 Part 1(aj) of the FOI Act as amended by section 76 of the FSPO Act.

In terms of information relating to why certain decisions were omitted from the public database, the FSPO said that under section 56(4) of the FSPO Act the Ombudsman is required to ensure that "investigations are conducted otherwise than in public". It said that to ensure the confidentiality of the complaint investigation process for the parties to that complaint, the legally binding decision with respect to an individual complaint, only issues to the relevant complainant and provider. This is in accordance with section 60(3) and section 61(6) of the FSPO Act. The FSPO said the records which have been sought by the applicant in his FOI request are these legally binding decisions made with respect to individual complaints which, as detailed above, are specifically exempt under Schedule 1, Part 1 (aj) of the FOI Act.

The FSPO said that publication of the Ombudsman's legally binding decisions must also ensure compliance with the Data Protection Acts. For that reason, a separate team within the FSPO undertakes a full examination of the contents of every legally binding decision which has been issued, to determine whether it includes details of unique or unusual circumstances or events, which would create the risk of the complainant being identified. It said some decisions are published without change, and certain other decisions can be published once appropriate redactions have been applied. The FSPO said it assesses whether the contents of any decision, taken together, could make the individual complainant(s) "otherwise" identifiable, not necessarily to the public at large, but potentially to others who may know them. Where that possibility remains, even when appropriate redactions have been applied, a legally binding decision will be withheld from publication, to ensure compliance by the FSPO with section 62 of the FSPO Act. The FSPO said examples include decisions which reference unusual health conditions, unique combinations of circumstances, or particularly sensitive personal issues. A decision will also be withheld from publication where that decision is the subject of a statutory appeal to the Courts under section 64 of the FSPO Act.

The FSPO said that non-publication of a legally binding decision arises only when the it holds a very real concern that, in the event of publication, a complainant will be "otherwise" identified. It said that this is in keeping with its statutory obligations under sections 56(4) and 62(2) of the FSPO Act.

In its submissions to this Office, the FSPO noted the applicant's assertion that the "FSPO will not investigate cases that are too complex and therefore we assert that it is possible to publish a redacted summary of all decisions made by the FSPO". The FSPO said that there are issues of considerable complexity that can be viewed amongst the more than 2,240 decisions that are published on the FSPO website. The FSPO said it is not the complexity of a complaint that prevents it from publishing the ensuing legally binding decision; rather, it is the intended compliance by the FSPO with the required anonymity and data protection requirements of section 62(2) of the FSPO Act that may make a decision unsuitable for publication. The FSPO said that information about the non-publication of decisions is included on its website where the database of decisions can be accessed.

As I have outlined above, pursuant to Schedule 1, Part 1(aj), records held by the FSPO relating to records concerning the mediation, investigation or adjudication of a complaint carried out by the FSPO under the FSPO Act 2017 are not subject to the FOI Act. Having considered the matter carefully and having regard to the records sought by the applicant in this case, I am satisfied that any such records are related to the investigation of each individual complaint by the FSPO under the FSPO Act. For the sake of clarity, I am also satisfied that this extends to records concerning the decision of the FSPO not to publish individual decisions. Accordingly, I find that the FSPO was justified in its decision to refuse access to the records sought pursuant to Schedule 1, Part 1(aj) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the FSPO's decision to refuse the applicant's request pursuant to Schedule 1, Part 1(aj) of the FOI Act on the basis that the FOI Act does not apply to the records sought.

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.

Richard Crowley
Investigator