FOI reference - FOI-127
Date - 23 June 2023
Request
- Please provide communications between the Pension Regulator and the Department for Work and Pensions, or its predecessors, regarding the Halcrow Pension scheme, between June 2015 and February 2018.
- Please provide communications between the Pension Regulator and the Department for Work and Pensions, or its predecessors, regarding the company CH2M, between June 2015 and February 2018.
Response
I confirm that we hold the information you have requested. However, some of the information you have requested is exempt from disclosure.
Following a search of our electronic records, I have established that we held 43 communications relating to your request. Please be aware that some of the communications are of the same email chain and all within this total should not be considered as sperate communications relating to Halcrow Pension scheme or CH2M.
I can confirm that:
- 42 are exempt due to Section 42 of FoIA. This is a qualified exemption, subject to the public interest test which we have completed below.
- content in 1 of the communications is exempt under Section 44 of FoIA. This is because disclosure of the sort of information requested is prohibited under an enactment. The type of information you have requested would be 'restricted information'. Restricted information is defined at section 82(4) of the Pensions Act 2004 (PA04).
Any redactions made to any information we have disclosed as part of your request will fall in either of the above-mentioned exemptions.
Exemptions
Section 42 of The FoIA
Section 42(1) states “information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings is exempt information.’
The common law principle of legal professional privilege (LPP) carries with it an inherent significant public interest as it is designed to maintain the confidentiality of communications between a lawyer and their client and in the communications produced by the lawyer in the course of their work for the client. It is important for there to be a free and confidential exchange of views for both individuals and public authorities and their legal advisors with regard to their legal rights and obligations.
In order to outweigh the public interest in maintaining LPP and therefore the exemption, there must be very strong public interest reasons for waiving privilege.
There is an accepted and understood public interest in transparency, accountability and improving the public’s understanding of our investigations. It is in the public interest to have a greater understanding of how we reach our decisions.
However, that has to be weighed against our regulatory functions. Where we seek legal advice in relation to the exercise of our regulatory functions, it is in the public interest that the advice obtained is appropriate, and in order for this to happen we have to be able to be frank and open in seeking that advice.
Whilst there are arguments in favour of disclosure, none outweigh the inbuilt fundamental public interest in LPP.
In the circumstances, the public interest in maintaining the exemption in section 42(1) outweighs the public interest in disclosure. We must remain free to seek and receive legal advice in order to ensure we exercise our functions and to engage in a free and frank exchange of views with Counsel in doing so, without fear of matters not intended for public consumption becoming public in a manner which is not appropriate and not conducive to our ability to effectively carry out our statutory functions.
Section 44 of The FoIA and Section 82 of PA04
As we have been given strong powers to demand documents and other information from trustees, employers and others, those powers are also balanced by restrictions on how we disclose the information provided to us. The type of information you have requested would be 'restricted information'. Restricted information is defined at section 82(4) of the PA04 as:
"...information obtained by the Regulator in the exercise of its functions which relates to the business or other affairs of any person..."
Under section 82(5) of the PA04 it is a criminal offence to disclose such information except as permitted under that Act.
Whilst the FoIA is based on the presumption of releasing information, section 44(1)(a) of the FoIA provides an absolute exemption to the requirement to disclose any information if its disclosure is prohibited by or under any enactment. In this case, section 82 of the PA04 prohibits disclosure of the requested information.
This exemption is absolute and does not require a public interest assessment be undertaken.
Assistance
It may be of interest to you, that we published a Regulatory Intervention Report about Halcrow in July 2016 and issued a press release about it which can be found on the National Archives website.