• 4. 4. Disclosure Of Confidential Information

    • 4.1 4.1 Making a request for disclosure of Confidential Information

      • 4.1.1

        Every request to disclose Confidential Information, will be assessed by the Regulator on a case-by-case basis, whether this information was obtained voluntarily, in the course of the Regulator exercising its own functions and powers or exercising its powers on behalf of other authorities.

        Amended on (18 April, 2019).

      • 4.1.2

        In deciding whether to comply with a request to disclose Confidential Information, the Regulator would satisfy itself that there are legitimate reasons for the request and that the authority requesting the information has the appropriate policies and procedures in place for dealing with Confidential Information.

        Amended on (18 April, 2019).

      • 4.1.3

        Section 199(3) of the FSMR enables the Regulator to, among other things:

        (a) impose conditions on the information disclosed, which may relate to, among other things, the obtaining of consents or, where appropriate, subjecting information received to restrictions on disclosure that are at least equivalent to those set out in section 198, per paragraph 199(3)(a); and
        (b) restrict the uses to which the Confidential Information disclosed may be put.
        Added on (18 April, 2019).

      • 4.1.4

        Where the disclosure by the Regulator is made subject to conditions, the person to whom the Confidential Information has been disclosed may not use the Confidential Information in breach of any such condition, as set out in section 199(4) of the FSMR.

        Added on (18 April, 2019).

    • 4.2 4.2 Disclosure to governmental and regulatory authorities in section 199 of the FSMR

      Amended on (18 April, 2019).

      • 4.2.1

        Section 199(1)(b) gives the Regulator specific authority to disclose Confidential Information to the authorities listed therein so that they may properly carry out their function, subject to section 199(2).

        Amended on (18 April, 2019).

      • 4.2.2

        Where the Confidential Information (in whole or in part) originates in another governmental or regulatory authority, the Regulator may only disclose that Confidential Information in accordance with section 199(2), as set out in paragraphs 3.3.3 – 3.3.4 above, subject to paragraph 3.3.5.

        Amended on (18 April, 2019).

      • 4.2.3

        As set out in paragraphs 4.1.3 and 4.1.4 above, in disclosing any Confidential Information under section 199(1), the Regulator may require the requesting authority to comply with certain conditions or agree to restrict the uses to which the Confidential Information may be put, insofar as the Regulator considers appropriate.

        Amended on (18 April, 2019).

      • 4.2.4

        In addition, should a memorandum of understanding be in place between the Regulator and a Non-ADGM Regulator concerning the sharing of Confidential Information, subject to the limitations contained in the FSMR, the Regulator will conduct itself in accordance with section 199(2) and the terms of such memorandum of understanding. For example, the Regulator may include a provision that each party's consent is required to be obtained prior to disclosing any Confidential Information to a third party (unless the information is required for the purpose of a criminal investigation or criminal proceedings, as discussed in paragraph 3.3.5).

        For example, on receipt of a legitimate request for Confidential Information in possession of the Regulator from a Non-ADGM Regulator ("the requestor"), made for the purpose of facilitating the carrying out of a Public Function, the Regulator:

        a) may disclose the Confidential Information to the requestor subject to conditions, including that:—
        i. the requestor may only use the Confidential Information for their own lawful purpose as identified in the request;
        ii. the requestor may not voluntarily disclose the Confidential Information to a third party (including other regulatory entities in their home jurisdiction) without the further consent of the Regulator; and
        iii. if the requestor is compelled to disclose the Confidential Information by court order or subpoena, it must give notice to the Regulator prior to disclosure unless such notice would violate applicable laws.
        b) will generally not notify affected parties of the request for Confidential Information. Notice to the affected party/parties will only be considered where such notification would not be contrary to the public interest and would not frustrate or prejudice the purpose of the disclosure to the requestor.
        Amended on (18 April, 2019).

      • 4.2.5

        When the Regulator receives a request from an authority to disclose Confidential Information (other than compelled testimony – see paragraph 4.5), the Regulator will generally comply with such request if made in good faith for the specific purpose of fulfilling the performance of the requesting party's functions and powers, as contemplated by section 199(1).

        Added on (18 April, 2019).

    • 4.3 4.3 Disclosure for use in civil litigation

      • 4.3.1

        In other circumstances, such as where Confidential Information is sought by a party other than a governmental or regulatory authority, such as, for example, as evidence for use in civil litigation, the Regulator will require prior consent of—

        (a) the person from whom the Confidential Information was obtained; and,
        (b) if different, the person to whom the duty of confidentiality is owed (paragraphs 198(1)(a) and (b)),
        consistent with its general duty of confidentiality, as contemplated by section 198(1) of the FSMR.

        Amended on (18 April, 2019).

      • 4.3.2

        The Regulator will, to the extent permitted by applicable law, provide the person whose interests are likely to be adversely affected by the proposed disclosure with the information necessary to enable the person to make submissions to the Regulator. These may include the following:

        (a) whether the factual and legal conditions justifying the disclosure are met;
        (b) the scope of the disclosure of Confidential Information; and
        (c) whether any conditions should apply to the disclosure.

      • 4.3.3

        If a person would be adversely affected by the proposed disclosure of Confidential Information and the purpose for the request is to use the information in civil proceedings in the ADGM Court, the person requesting the Confidential Information would be required to obtain an order of the ADGM Court compelling the Regulator to disclose the Confidential Information.

      • 4.3.4

        Upon receipt of such an order, the Regulator would generally notify the person adversely affected by the proposed disclosure of Confidential Information of this so that the person has an opportunity to challenge the request according to the rules of the Court.

      • 4.3.5 [Deleted]

    • 4.4 4.4 Disclosure to a court

      • Civil proceedings in the ADGM Court

        • 4.4.1

          The ADGM Court's enabling legislation, Abu Dhabi Law No. (4) of 2013, gives it exclusive judicial jurisdiction in the ADGM and over ADGM bodies, including the Regulator. Therefore, the Regulator may be obliged to disclose Confidential Information if it is compelled to do so under an order from the ADGM Court.

        • 4.4.2

          If the Regulator is required to disclose Confidential Information received from a government or Regulatory Authority (for example, information received under a Memorandum of Understanding), the Regulator will ordinarily:

          (a) notify the Regulatory Authority that provided the Confidential Information of the receipt of the legally enforceable demand, in accordance with section 199(2); and
          (b) where appropriate, assert any legal rights or privileges to protect the Confidential Information (for example, Public Interest Immunity — see paragraph 4.6 below).

      • Criminal prosecutions in the UAE Courts

        • 4.4.3

          All activities in the ADGM remain subject to UAE criminal laws by virtue of the Federal Law No. 8 of 2004 concerning Financial Free Zones. Accordingly, the Regulator is obliged, under Article 78, Part 2 of the UAE Penal Procedures Law (Federal Law No. 35) of 1992, to comply with any legally enforceable demand or order from a competent authority responsible for administering the criminal laws of the UAE. This includes orders or demands to disclose Confidential Information.

        • 4.4.4

          As in the case of legally enforceable demands in civil or commercial matters discussed at paragraph 4.4.2 above, the Regulator will, where appropriate, assert any legal rights or privileges to protect the Confidential Information and resist disclosure (for example, Public Interest Immunity – see paragraph 4.6 below).

    • 4.5 4.5 Compelled testimony in criminal proceedings

      • 4.5.1

        If the Regulator receives a request from a law enforcement agency for a person's answers in an interview conducted under section 206(1)(a) of the FSMR for the purpose of criminal proceedings against the person, the Regulator will, in accordance with section 207(2) of the FSMR, generally notify the person concerned of such request (so that the person has an opportunity to either consent to the disclosure or challenge the request), unless the Regulator is required by law or court order to disclose the statement.

    • 4.6 4.6 Public Interest Immunity

      • 4.6.1

        Public Interest Immunity ("PII") is an immunity from the production of documents or information where their disclosure would be against the public interest. PII is a common law doctrine, developed to allow the courts to reconcile any potential conflict between the following two public interests—

        (a) the interest in the administration of justice which demands that relevant material is available to the parties to litigation; and
        (b) the interest in maintaining the confidentiality of certain documents whose disclosure would be damaging to the public interest.

      • 4.6.2

        When a PII claim is asserted, a court would be required to balance between whether the public interest in disclosing certain information is outweighed by the public interest in preserving the confidentiality of that information.

      • 4.6.3

        A claim of PII, for example, may be appropriate in the circumstances where disclosure would prejudice or otherwise unduly interfere with the Regulator's ability to perform its functions and exercise its powers (including if the disclosure would adversely affect its ability to cooperate with and receive Confidential Information from other Regulatory Authorities).