Decision
X Solicitors and Central Bank of Ireland
From Office of the Information Commissioner (OIC)
Case number: OIC-97025-R9N7N7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-97025-R9N7N7
Published on
Whether the Central Bank was justified in withholding correspondence with the pillar banks regarding tracker mortgages
28 July 2021
The following two paragraphs, which are based on information on the Central Bank’s website, provide some context for my decision in this case.
Since 2010, the Central Bank has identified and pursued tracker mortgage related issues with lenders. As new issues continued to emerge, it decided that a system-wide review was necessary, to ensure that all lenders are acting in their customers' best interests. It wrote to 15 lenders in December 2015 setting out the framework for carrying out the Tracker Mortgage Examination (the Examination), which covers all mortgage lenders who have sold tracker mortgages in Ireland at any time in the past. It covers both banks and other regulated lenders, and also includes lenders that are no longer selling mortgages as well as mortgages that have been redeemed or switched to another lender.
The Examination requires all lenders to examine the extent to which they met their contractual obligations to their customers, their compliance with their obligations under relevant consumer protection regulations in their dealings with their customers and their communications with customers in respect of these matters. The Examination is progressing. All lenders have commenced redress and compensation. Regular progress updates on the Examination have been published. The final report regarding the supervisory phase of the Examination was published on 16 July 2019.
In a request dated 22 April 2020, the applicant sought access under the FOI Act to electronic copies of the following:
1. Copies of industry letters issued by the Central Bank Consumer Protection Division to the pillar banks between 2013 and 2015 relating to complaints about bank practices in relation to the application of tracker rates.
2. Copies of any other letters issued to Bank of Ireland between 2013 and 22 December 2015 (i.e. the commencement of the Examination) which include reference to tracker rate mortgages.
3. All responses received by the Central Bank from Bank of Ireland in response to the letters issued above.
The Central Bank’s decision of 20 May 2020 refused the request on a number of grounds, including that further to the provisions of Schedule 1, Part 1, paragraph (b)(i) of the FOI Act, the Central Bank is not an FOI body insofar as the requested records are concerned. The applicant sought an internal review on 8 June 2020. On 1 July 2020, the Central Bank affirmed its decision on his request and also provided the applicant with details of certain material on its website. On 14 September 2020, the applicant applied to this Office for a review of the Central Bank’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to correspondence between this Office, the Central Bank and the applicant and the provisions of the FOI Act.
The scope of this review is confined to whether the Central Bank’s decision on the applicant’s request was justified under the provisions of the FOI Act. This Office has no role in considering either the Central Bank’s performance of its functions in its capacity as a regulator generally or the applicant’s contentions regarding the pillar banks’ general administration of tracker mortgages or their participation in the Examination.
Schedule 1, Part 1, paragraph (b)(i)
The Central Bank is a partially included agency for the purposes of the FOI Act. Further to paragraph (b)(i) of Part 1 of Schedule 1 to the FOI Act, it is not an FOI body in relation to “records held by it 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 Central Bank of Ireland, or is otherwise regulated by the Central Bank of Ireland, that the Central Bank of Ireland 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 Central Bank says that it has published information on its activity and engagement with firms on tracker mortgage related issues from 2009-2015, including information on sanctions and issues rectified with named institutions (such as in pages 21-24 of an update to the Examination published in 2017 at https://www.centralbank.ie/docs/default-source/consumer-hub-library/tracker-issues/reporttracker-related-mortgage-issues.pdf?sfvrsn=6).It says that the requested records are comprised of direct correspondence that it received from and sent to individual pillar banks, containing confidential regulatory information relating to the business affairs of these banks that the Central Bank received for the purposes of performing, or in the discharge of, its statutory functions as the regulator of financial services providers. It says that the records concern ongoing supervisory matters as part of the Examination such as inspection outcomes, post inspection requirements and details of required risk mitigation actions.
The pillar banks, including Bank of Ireland, are regulated by the Central Bank. I accept that information relating to the pillar banks’ practices in respect of tracker mortgages amounts to commercial and/or regulatory information relating to the business affairs of the banks concerned. Given the nature of the issues and information concerned, I also accept that that such information is confidential between the Central Bank and the regulated entity concerned. I am satisfied that the correspondence between the Central Bank and the pillar banks within the scope of the applicant’s request concerns confidential information received by the Central Bank for the performance or discharge of its statutory functions.
Having regard to the nature and timing of the requested correspondence, I am satisfied that it is covered by paragraph (b)(i) of Part 1 of Schedule 1. I should also say that I do not consider the requested letters to amount to the type of non-identifiable summary or aggregate records to which the FOI Act otherwise applies.
The applicant says that his request is intended to illustrate that the Central Bank was raising concerns about tracker mortgages with banks well before it formally notified and commenced its Examination. His position is that there has “been an under declaration as to the full extent of the tracker mortgage issue” because it would place greater exposure and financial burden on the lenders concerned as a result of further redress that would arise. He says that while there may be a statutory and lawful entitlement for his request to be refused, “there is an equal if not more important role in this discussion and that relates to the end user, being the borrower” i.e. a consumer protection issue.
I note that the applicant makes no arguments to the effect that his request does not cover records falling within the provisions of paragraph (b)(i) of Part 1 of Schedule 1 to the FOI Act, but sets out reasons why the records should nonetheless be found to be subject to FOI and presumably released. However, section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that an applicant's motivation cannot be considered except insofar as it might be relevant to the consideration of public interest provisions. Furthermore, the matter of whether the records are covered by paragraph (b)(i) of Part 1 of Schedule 1 to the FOI Act does not require consideration of the public interest. For the reasons set out above, I find that the applicant’s request seeks records that are covered by paragraph (b)(i) of Part 1 of Schedule 1.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Central Bank’s decision on the basis of paragraph (b)(i) of Part 1 of Schedule 1 to the FOI Act.
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.
Deirdre McGoldrick
Senior Investigator