Enforcement policy and supervisory approach

Summary

The applicant requested internal documents detailing the Isle of Man Financial Services Authority's current supervisory approach and enforcement policies produced since March 2018. The Authority refused to disclose the information, citing that the documents are held in draft form pending finalization.

Key Facts

• The request was received on 23 April 2019 and responded to on 16 May 2019.
• The Authority confirmed the information exists but is exempt from disclosure.
• The exemption is based on the information being held in draft form pending finalization.
• A previous request (369534) made in March 2018 received a similar refusal under the same exemption.
• The Authority's website has displayed a holding message regarding the update of its supervisory approach since 2015.

Data Disclosed

• 2019-04-23
• 2019-05-16
• 2018-03-29
• 2015
• 11 pages
• 369534
• 801665
• section 41

Exemptions Cited

• Section 41 of the Act (Information held with a view to future publication)

Original Request

The website of the IOMFSA has for a number of years, the applicant believes since the very formation of the IOMFSA in 2015, indicated on its website pages (including https://www.iomfsa.im/regulated-sectors/regulated-sectors-general/supervisory-approach/) that 'the Authority's supervisory approach is currently being updated. A new version of its supervisory approach will be published in the near future'. This holding message appears on 11 pages of the IOMFSA's website in relation to all regulated sectors. Freedom of Information request 369534, to which the IOMFSA published a response on 29 March 2018, over one year ago, requested disclosure of any and all internal IOMFSA documents setting out its enforcement policy, and in the event that no such IOMFSA documents existed, sought disclosure of that fact. In its response to request 369534, the IOMFSA indicated that such information existed but that (in its view) 'the information is exempt from disclosure under section 41 of the Act as it is held with a view to being published at a future date, when the draft policy and procedures have been approved and in all the circumstances it is reasonable that the information be withheld from disclosure until that time'. In view of recent media coverage of the IOMFSA's policies and procedures, it is important to the public, including financial and professional service providers in the Isle of Man and their many employees, that the IOMFSA provides absolute clarity as to what policies the IOMFSA adopts in relation to the persons it regulates, in particular so that such persons may have confidence as to what supervisory and enforcement approach the IOMFSA can be expected to take. The present request seeks disclosure of any and all IOMFSA documents produced or made available to its board members or employees since 29 March 2018 which set out: 1. its current supervisory approach in relation to regulated sectors and designated business; and 2. its current supervisory and enforcement policies and procedures in relation to regulated sectors and designated business. This request does not extend to any document published on the IOMFSA website on the date of this request (23 April 2019). Due to the extended and continuing delay in the publication by the IOMFSA of the documents requested, now several years, it is in the public interest and reasonable in all the circumstances that these now be published in response to this request.

Data Tables (1)

Full Response Text

Isle of Man Financial Services Authority PO Box 58, Finch Hill House, Bucks Road, Douglas, Isle of Man, IM99 1DT Tel: +44 (0)1624 646000 Website: www.iomfsa.im

Our ref: 801665 16 May 2019

Dear ###

We write further to your request which was received on 23 April 2019 and which states:

"The website of the IOMFSA has for a number of years, the applicant believes since the very formation of the IOMFSA in 2015, indicated on its website pages (including https://www.iomfsa.im/regulated-sectors/regulated-sectors-general/supervisory- approach/) that 'the Authority's supervisory approach is currently being updated. A new version of its supervisory approach will be published in the near future'. This holding message appears on 11 pages of the IOMFSA's website in relation to all regulated sectors. Freedom of Information request 369534, to which the IOMFSA published a response on 29 March 2018, over one year ago, requested disclosure of any and all internal IOMFSA documents setting out its enforcement policy, and in the event that no such IOMFSA documents existed, sought disclosure of that fact. In its response to request 369534, the IOMFSA indicated that such information existed but that (in its view) 'the information is exempt from disclosure under section 41 of the Act as it is held with a view to being published at a future date, when the draft policy and procedures have been approved and in all the circumstances it is reasonable that the information be withheld from disclosure until that time'. In view of recent media coverage of the IOMFSA's policies and procedures, it is important to the public, including financial and professional service providers in the Isle of Man and their many employees, that the IOMFSA provides absolute clarity as to what policies the IOMFSA adopts in relation to the persons it regulates, in particular so that such persons may have confidence as to what supervisory and enforcement approach the IOMFSA can be expected to take. The present request seeks disclosure of any and all IOMFSA documents produced or made available to its board members or employees since 29 March 2018 which set out: 1. its current supervisory approach in relation to regulated sectors and designated business; and 2. its current supervisory and enforcement policies and procedures in relation to

regulated sectors and designated business. This request does not extend to any document published on the IOMFSA website on the date of this request (23 April 2019). Due to the extended and continuing delay in the publication by the IOMFSA of the documents requested, now several years, it is in the public interest and reasonable in all the circumstances that these now be published in response to this request."

While our aim is to provide information whenever possible, in this instance the information is exempt from disclosure under section 41 of the Act as it is held in draft form only, pending finalisation. As section 41 is a qualified exemption, it is subject to a public interest test. The public interest must be something that is of serious concern and benefit to the public at large.

Factors in favour of disclosure The Authority has previously given commitments to publish both its updated supervisory approach and processes relating to enforcement.

Factors in favour of withholding Neither the revised supervisory approach nor the enforcement process has yet been finalised, nor considered by the Board of the Authority, so they are not available for publication. As indicated on https://www.iomfsa.im/regulated-sectors/regulated-sectors- general/supervisory-approach/ the Supervisory Approach is currently being updated. This is a medium-term project due to the need to consider the processes from the two former regulators (Financial Supervision Commission and Insurance and Pensions Authority) which together formed the Authority, and the four separate regulatory Acts under which the Authority operates (Collective Investment Schemes Act 2008, Financial Services Act 2008, Insurance Act 2008 and Retirement Benefit Schemes Act 2000). Information may also be found in the Authority’s 2018-2021 Strategic Plan: https://www.iomfsa.im/media/2516/isle-of-man-financial-services-authority-strategic- plan-2018-2021.pdf. No publication date has yet been agreed. In response to your previous request on this topic, we indicated on 29 March 2018 that the information would be published when it had been approved. The Authority has undertaken a comprehensive review project in relation to its Enforcement decision- making and is in the final stages of preparing a new Enforcement decision-making process. Once complete, the Authority will publish this process on its website. In addition, the Authority will introduce the process to industry through a series of seminars. These are expected to take place in the next 2-3 months. In taking these factors into account the Isle of Man Financial Services Authority determined that the information cannot yet be disclosed and that the factors in favour of maintaining the exemption outweigh the factors in favour of disclosing the information. Additional information

In respect of the supervisory approach, you may be aware that the Authority gave a presentation in November 2018 outlining its proposals – please see https://www.iomfsa.im/fsa-news/2018/nov/slides-from-the-financial-services-authority- s-industry-update-2018/ which provides a link to the slides (https://www.iomfsa.im/media/2533/industry-update-full-presenation-2018.pdf). Slides 64-73 cover the Authority’s supervisory approach proposals. Connected with these proposals, the Authority is currently testing elements / components of the draft new supervisory approach with a small number of firms with the aim of ensuring that the final version will be appropriate. Please quote the reference number 801665 in any future communications.

Your right to request a review

If you are unhappy with this response to your freedom of information request, you may ask us to carry out an internal review of the response, by completing a complaint form and submitting it electronically or by delivery/post.

An electronic version of our complaint form can be found by going to our website at https://services.gov.im/freedom-of-information/Review . If you would like a paper version of our complaint form to be sent to you by post, please contact me and I will be happy to arrange for this. Your review request should explain why you are dissatisfied with this response, and should be made as soon as practicable. We will respond as soon as the review has been concluded.

If you are not satisfied with the result of the review, you then have the right to appeal to the Information Commissioner for a decision on: 1. Whether we have responded to your request for information in accordance with Part 2 of the Freedom of Information Act 2015; or 2. Whether we are justified in refusing to give you the information requested.
In response to an application for review, the Information Commissioner may, at any time, attempt to resolve a matter by negotiation, conciliation, mediation or another form of alternative dispute resolution and will have regard to any outcome of this in making any subsequent decision. More detailed information on your right to a review can be found on the Information Commissioner’s website at www.inforights.im. Should you have any queries concerning this letter, please do not hesitate to contact me. Further information about freedom of information requests can be found at www.gov.im/foi. I will now close your request as of this date. Yours sincerely

Susan Woolard