SUP 5.6 Confidential information and privilege

Within the legal constraints that apply, the FCA may pass on to a skilled person any information which it considers relevant to the skilled person's function. A skilled person, being a primary recipient under section 348 of the Act (Restrictions on disclosure of confidential information by Authority etc.), is bound by the confidentiality provisions in Part XXIII of the Act (Public record, disclosure of information and cooperation) as regards confidential information received from the FCA or directly from a firm or other person. A skilled person may not pass on confidential information without lawful authority, for example, where an exception applies under the Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations 2001 (SI 2001/2188) or with the consent of the person from whom that information was received and (if different) to whom the information relates. The FCA will indicate to a skilled person if there is any matter which cannot be discussed with the person in SUP 5.2.1 G.

The limitations in the following sections of the Act are relevant to this chapter:

1. (1)

   section 175(5) (Information and documents: supplemental provisions) under which a person may be required under Part XI of the Act (Information Gathering and Investigations) to disclose information or produce a document subject to banking confidentiality (with exceptions); and

2. (2)

   section 413 (Protected items), under which no person may be required to produce, disclose or allow the inspection of protected items.

In respect of the appointment of a skilled person under section 166A (Appointment of skilled person to collect and update information) of the Act, a contractual or other requirement imposed on a person to keep any information confidential will not apply if:

1. (1)

   the information is or may be relevant to anything required to be done as part of the skilled person's appointment under section 166A (Appointment of skilled person to collect and update information) of the Act;

2. (2)

   a firm or a skilled person requests or requires the person to provide the information for the purpose of securing that those things are done; and

3. (3)

   the FCA has approved the making of the request or the imposition of the requirement before it is made or imposed.

A firm may provide information that would otherwise be subject to a contractual or other requirement to keep it in confidence if it is provided for the purposes of anything required to be done in respect of the skilled person's collection or updating of information under section 166A (Appointment of skilled person to collect and update information) of the Act.