RELEASE OF INFORMATION TO THIRD PARTIES
Much of the information gathered by the official receiver in his/her enquiries into the affairs of the insolvent will be confidential in nature (see Part 1), especially in respect of bankruptcies. Although there is no limit in the Act to which information obtained under compulsion can be put, the PIQ and narrative statement, in particular, are likely to contain information of which the majority is confidential (see paragraph 47.34).
This Part will be relevant to official receivers if they are releasing information proactively (to support his/her own statutory functions) or reactively (when asked to do so by some other authority).
Any written request for information held by the official receiver from a third party will be covered by Freedom of Information Act 2000 (FOI). It should be noted that where the official receiver is holding the information requested solely by virtue of his/her position as statutory office holder, FOI does not apply (see paragraph 81.08).
The official receiver is acting as a statutory office holder when he/she is provisional liquidator, liquidator, interim receiver, receiver and manager, trustee, nominee in a FTVA or a supervisor in a voluntary arrangement, and also if carrying out an investigation (regardless of whether he/she is still liquidator or trustee) (see paragraph 81.19).
It follows, therefore, that all files created by official receivers when acting in any of the above capacities are excluded from the provisions of FOI and, where the request is a valid FOI request (see paragraph 81.09), the official receiver will have to issue a refusal notice (see paragraph 81.34).
When releasing information, the official receiver should do so with care and only after considering the information and advice in this Part and in Chapter 81A, Part 6 which deals with the over-lapping DPA considerations in relation to an individual’s personal data.
Against this, the official receiver should take a practical approach so that where, for example, it is possible to obtain the consent of the person to whom the duty of confidentiality is owed, this should be done rather than forcing the requestor of the information down the route of court action to obtain the information.
If the official receiver is involved in the formal process of disclosure in connection with legal proceedings, the guidance in Part 5 should be followed, rather than the guidance in this Part.
Similarly, where a witness summons is received, the guidance in Part 6 should be followed.
The courts will allow a breach of confidence only where it is in the public interest to do so. In each case the official receiver will be required to carry out a balancing exercise to establish whether the public interest is better served by releasing the information or by keeping it confidential.
In deciding whether there is a public interest in releasing information, the official receiver will need to judge what is reasonable to disclose to meet the stated purpose in the request (see paragraph 47.32), also taking into account the seriousness of the reason for the request and the effect of not complying with it. Where specific information is requested to assist in the investigation of a criminal matter, it is likely that the public interest test will be met.
The official receiver will, in particular, be obliged to release the information where there is a statutory requirement to do so.
The official receiver should keep in mind that where a request for information is wide-reaching (looking like what is known as a ‘fishing expedition’), he/she is not obliged to disclose all or any of the information.
In areas of difficulty, the advice of Technical Section may be sought.
Where an official receiver receives a request to release confidential information held in a case file (which requests will generally come from regulatory authorities, including the Police), he/she should obtain details, in writing (which can include e-mail), of the following:
The response will assist the official receiver in balancing the public interest and assessing any obligation to release the information (see paragraph 47.31).
The narrative statement and PIQ are obtained under compulsion [note 1] [note 2] and will contain confidential information including an individual’s personal data. There is a strong presumption that this confidentiality should be observed, because it facilitates and promotes the proper performance of the duties of the official receiver.
The narrative statement and PIQ, and information contained therein should only be released where there is a strong public interest or statutory requirement to do so (see paragraph 47.31) or where the person giving the statement/information has given his/her consent, in writing, to the general or specific release of the statement/information. In particular, it has been held that the official receiver may release statements obtained under compulsory powers to aid the investigations of a prosecuting authority, with or without consent [note 3].
See paragraph 11.16 regarding the provision of a copy statement/PIQ to an interviewee.
Information obtained pursuant to a private examination (see Chapter 13, Part 5) is sometimes recorded in a transcript. Unless the court orders otherwise, inspection of the transcript is limited to the applicant for the private examination and those who would have been able to apply for an examination (essentially, the office-holder) [note 4] [note 5].
In this regard, the court may order release of the information if it will assist in the winding-up of the company, or it is otherwise in the interests of justice in a particular case, but not for any other reason [note 6] [note 7].
See also paragraph 47.73 for guidance relating to a private examination transcript and formal disclosure.
Where the official receiver is requested to release information or documents that were originally obtained from other third parties, he/she may still take the position of balancing the public interest (see paragraph 47.31), but it is likely to be more appropriate to ask the enquirer to direct his/her request on the original source of the information or, at least, to provide that person’s consent.
It should be noted that there are criminal penalties for the onward release of certain types of information, such as that obtained from the Financial Conduct Authority [note 11].
Where a request is received from the Financial Services Compensation Scheme (FSCS) acting under its duty to compensate investors (http://www.fscs.org.uk/), the official receiver must permit a person authorised by the FSCS to inspect documentation of the insolvent for the purposes of establishing [note 12]:
a) the identity of persons to whom the FSCS may be liable to make a payment in accordance with the compensation scheme; or
b) the amount of any payment which the FSCS may be liable to make.
It may be that some of the documentation is confidential in that it relates to the financial affairs of clients of the insolvent (rather than simply being a client list, for example). If so, the official receiver should ensure that the FSCS provides copies of consents supplied by the affected individuals before making available the requested information, unless the public interest in disclosing is strong.
Consequently, the official receiver should comply with reasonable requests from the FSCS. This would include taking of extracts and copying documents [note 13].
See paragraph 59.6 for further action to take in respect of an insolvent financial services business.
It is a criminal offence to disclose information obtained in the investigation of a live company (see paragraphs 2.22 to 2.23) unless it is for the purpose of assisting specified bodies in carrying out regulatory or statutory functions [note 14].
Where the official receiver holds information originally obtained from Live Investigations (see paragraph 47.25), and such information is requested by a third-party he/she may consider releasing that information if he/she is satisfied that the requesting party is one of these specified bodies [note 15], but, if in doubt, it is likely to be more appropriate to forward the request to Live Investigations so that they can provide the information, as appropriate.
Occasionally the official receiver may be requested to release information to a professional body with a regulatory function, for example the Law Society or the Association of Chartered Certified Accountants (‘ACCA’).
Such information should only be released when the public interest test outweighs that in maintaining the confidentiality of the information (see paragraph 47.31).
If a representative of the press (including on-line publications), radio or television contacts the official receiver, or a member of his/her staff, the Press Office (http://intranet/Comms/Communications/Press%20Office/PressHome.htm) should be consulted before any information (confidential or not) is released.
Guidance on the provision of information to insolvency practitioners on hand-over is provided in paragraphs 17.78 to 17.80.
See also paragraph 40.194 regarding the right to receive basic information where an insolvency practitioner is acting for a creditor/contributory.
Notwithstanding a creditor’s or contributory’s right to receive information regarding the insolvent’s affairs, the official receiver may provide a creditor or contributory, or their authorised representative (see paragraphs 17.20 to 17.20g), with the following information:
a) confirmation of the existence of proceedings,
b) whether or not a meeting of creditors is to be held and, if so, the date of the meeting,
c) the general nature and value of the assets, and
d) the amounts of the preferential and other liabilities in round figures.
Guidance on making accounting records available for inspection by a creditor is provided in Part 4.
It is possible for a person to sue a company or individual in insolvency as a means to secure a payment from the insolvent’s insurers (see Chapter 79).
Where the official receiver is considering releasing information in relation to such proceedings, he/she should refer to the guidance in paragraph 79.5.
The legislation provides that it is an offence, where a person has had a new gender legally recognised, to disclose information gained in an official capacity about a person’s application for gender recognition or about the gender history of a successful applicant (this is known as ‘protected information’) [note 16].
This is subject to certain exemptions and, in particular, an offence is not committed where [note 17]:
a) the release is made by or to the official receiver (or an insolvency practitioner); and
b) the release is necessary for the official receiver to perform functions under the insolvency legislation.
The official receiver will therefore need to carry out a balancing of the competing interests (see paragraph 47.31) and, in particular, may need to consider the significance of the time elapsed since the change of gender. As outlined in paragraph 47.29, the provisions of the DPA will also need to be considered when considering disclosure to the third party.