Request for Martin Wheatley emails on IRHP - April 2022

Please could you provide any emails to and from the email account of Martin Wheatley in which the interest rate hedging product (IRHP, swaps) review was referred to between 1 January 2013 and 1 July 2013.

Please could you provide the following information: Any emails (including their attachments) to and from the email account of Martin Wheatley in which the interest rate hedging product (IRHP, swaps) review and or the 'pilot review' into those products was referred to between 1 June 2012 and 31 December 2012.

We can confirm that we hold information that falls within the scope of your request, and the information we are able to provide[1] to you is below.

However, we have withheld the names of current or former FSA/FCA staff below the level of Manager or Technical Specialist as well as the names and email addresses of representatives of other organisations.  This is because it is the FCA’s policy not to disclose these names as disclosure would breach the requirements of the UK General Data Protection Regulations (“GDPR”).  Therefore, for the reasons set out in Annex A below, the information is exempt from disclosure under section 40 (personal information) of FOIA.

In addition, to the extent that the information you have requested is, or contains, confidential information received in the course of carrying out our public function under section 348 of the Financial Services and Markets Act 2000 (“FSMA”), we are prohibited from disclosing it to you under section 44 (prohibitions on disclosure) of FOIA.  For further details on why this exemption applies, please see Annex A below.

Lastly, where information is already in the public domain, we are not obliged to provide it to you.  Therefore, for the reasons set out in Annex A below, we are exempted from having to disclose it under section 21 (information reasonably accessible to the applicant by other means) of FOIA.

The information in question can be found here:

• Libor Survey Report (CFA Institute)[2]
• ESMA-EBA Principles for Benchmark-Setting Processes in the EU[3]
• The Wheatley Review of LIBOR – final report[4]

Annex A

General right of access to information held by public authorities

Under section 1(1)(a) of the Act, any person making a request for information to a public authority is entitled to be informed in writing by the public authority whether it holds information of the description specified in the request. If the public authority holds information of the type specified in the request, the person requesting the information is entitled under section 1(1)(b) to have the information communicated to them. The rights in section 1(1)(a) and (b) are subject to a number of exclusions and exemptions.

• Section 40 (Personal Information)

To the extent that the information that we hold contains personal data about individuals, section 40(2)(b) of the Act provides that "[a]ny information to which a request for information relates is also exempt information if the first, second or third condition listed below is satisfied."

We have applied this exemption because the first condition (as stated in section 40(3A) of FOIA) is satisfied.  Some of the information comprises the personal data of individuals other than yourself which, if disclosed, would contravene any of the data protection principles.

In particular, it would be a breach of the first data protection Principle as set out in Article 5 of the UK GDPR, to disclose such information, as it would not be lawful or fair to do so.  As set out above, it is the FCA’s policy not to disclose the names of staff below the level of Manager and Technical Specialist, as well as the names and email addresses of representatives of other organisations.

In addition, the individuals concerned have not given their consent for their personal details to be made public and the release of such information may be detrimental to the individuals themselves.

This is an ‘absolute’ exemption, and so it is not necessary to balance the public interest for and against disclosing the information.

• Section 44 (Prohibitions on Disclosure)

Section 44(1)(a) of the Act provides that information is exempt from disclosure if this is prohibited by or under any enactment.

Section 348 of FSMA prohibits the disclosure of “confidential information” otherwise than in limited permitted circumstances, none of which apply in the present case.

"Confidential information” is defined in section 348 of FSMA as information which relates to the business or other affairs of any person, which was received by the FCA (or its predecessor the FSA) for the purposes of, or in the discharge of, its functions under FSMA, which is not in the public domain (unless disclosed in breach of section 348), and which is not in the form of a summary or collection of information so framed that it is not possible to ascertain from it information relating to any particular person.

To the extent that the information you requested is, or contains, confidential information under this provision, we are unable to provide it to you.  If we disclosed the information without the providers’ consent and the consent of the person/s the information is about, we would breach section 348 of FSMA which is a criminal offence.

This is an ‘absolute’ exemption, which means it is not necessary to balance the public interest for and against disclosing the information.

• Section 21 (Information reasonably accessible to the applicant by other means)

We are not required to provide you with this publicly available information as it is accessible to you by other means.

FOIA states that information should be considered to be reasonably accessible to the applicant, if it is information which the FCA or any other person is obliged by or under any enactment to communicate (otherwise than by making the information available for inspection) to members of the public on request, whether free of charge or on payment.

To the extent that some of the information we hold is publicly available, we are exempt from the duty to release it under the section 21 of FOIA, as this is information which is accessible to you by other means.