Are ASIC investigations of financial service providers private? Not automatically.

In dealing with ASIC and other regulators it is important to understand that the Freedom of Information Act 1982 applies to government agency records and public disclosure is subject to the provisions of that Act.

In Brighton-Stangstins and Australian Securities and Investments Commission [2014] AICmr 56 and American Express Australia Limited and Australian Securities and Investments Commission [2014] AICmr 57 the Privacy Commissioner considered whether an individual was entitled to access under the Freedom of Information Act 1982 to ASIC records of its investigation into American Express’ credit card interest rate policy for defaulting cardholders.

AMEX objected to the disclosure of these documents and ASIC had agreed with some of AMEX’s objections.

The Commissioner refused access to some of the documents sought and granted access to others, some modified by deletions.

In deciding whether to disclose some documents which AMEX said were documents disclosing trade secrets or commercially valuable information, the Commissioner said:

I am not satisfied that the information in these documents meets the threshold in s 47. Much of the information is publicly known following ASIC’s media release of 24 February 2012 and I do not think its disclosure would result in any reduction in the value of AMEX’s business operations or commercial activities. Further, none of the information is important or essential to AMEX’s profitability or viability, nor does it confer a competitive advantage on AMEX. Finally, I do not consider that a genuine ‘arm’s length’ buyer would be prepared to pay for any of the information in the documents.

In respect of AMEX’s claim that the release of certain documents would adversely affect its business the Commissioner said:

I am satisfied that the information in these documents relates to the commercial or financial affairs of AMEX as they refer to the ASIC investigation into AMEX’s CCIRP. However, I am not satisfied that the disclosure of this information would, or could reasonably be expected to, unreasonably affect AMEX in respect of its commercial or financial affairs, not could it reasonably be expected to prejudice the future supply of information to the Commonwealth.

But other documents were not disclosed as “disclosure could reasonably be expected to prejudice ASIC’s ability to obtain confidential information and disclosure could reasonably be expected to prejudice ASIC’s ability to obtain similar information in the future.”