On 8 October the applicant made a freedom of information request for the FCA’s internal guidance on attestations.

The FCA responded that although it did hold some guidance on the use of attestations it was withholding it on the basis that disclosing the information would

1. inhibit the free and frank provision of advice, the exchange of views or would otherwise prejudice the conduct of public affairs (section 36 of the Freedom of Information Act (FOIA)) and
2. would be likely to prejudice the exercise by the FCA of its functions or of determining whether circumstances existed which would justify regulatory action (section 31 of FOIA). The applicant appealed to the Information Commissioner’s Office (ICO).

The ICO determined that the FCA was wrong to rely on section 36 since the FCA could rely on the more specific exemption in section 31 to withhold the majority of the guidance. Disclosure of the guidance would prejudice the effective use of attestations as a means of supervising the financial services market and determining whether more formal regulatory action was warranted. There was a public interest in maintaining the effective use of this tool.

Although the FCA’s guidance was not disclosed to the applicant, the decision does provide some guidance on how the FCA views attestations:

attestations are formal undertakings given by individuals within a firm that they will either take a particular course of action or are in a position to confirm that the company is complying with a particular aspect of the regulatory regime. The individual signing the attestation is responsible for ensuring the undertaking is adhered to;

1. the FCA intends to use attestations to provide firms with the opportunity to put their own affairs in order without the need for more formal regulatory action and make identified individuals accountable for dealing with the issue in question;
2. the FCA claims that an important component of the strategy of using attestations is that firms and individuals cannot anticipate when attestations will be used in preference to more formal measures; and
3. the FCA aims not to be too prescriptive in the form of the attestation to encourage firms to strive for a higher level of compliance than doing the minimum necessary to satisfy a prescriptive attestation.

A copy of the ICO’s decision notice is available. http://ico.org.uk/~/media/documents/decisionnotices/2014/fs_50529860.pdf