RPP 5-5 RPP 5-5 Information Gathering
Once an investigation is commenced, the
DFSAmay exercise its powers to gather information to advance its objectives.
DFSA'sinformation-gathering powers may only be exercised by delegates of the Chief Executive. The delegation need not be limited to DFSAemployees. The Chief Executivemay delegate DFSApowers to non-DFSA staff who are able to assist a DFSAinvestigation.
Similarly, where the
DFSAis exercising its powers on behalf of another regulator, it may also delegate powers to a representative of that regulator.16
16 Article 40.
Article 80 Powers
During an investigation, the
DFSAmay obtain relevant information and documents on a compulsory basis, principally through the exercise of its powers under Article 80(1), and on a voluntary basis.
The Article 80(1) power to obtain information is a key component of the
DFSA'sinvestigative powers. Without the compulsory powers in Article 80(1), the DFSAwould not be able to conduct effective and thorough investigations into suspected misconduct or suspected contraventions of the Law, and consequently would not be able to meet its objectives.
RPP 5-5-6(a) only for the purposes of an investigation; and(b) in circumstances where the
DFSAconsiders that a Personis or may be able to give information or produce a document which is or may be relevant to an investigation.
By comparison, the Article 73(1) power permits the
DFSAto request information and documents from an Authorised Person, DNFBP, Domestic Fund, Registered Auditorand any director, officer, employees or agent of such Person, which the DFSAconsiders is necessary or desirable to meet the objectives of the DFSA.
DFSAuses its powers under Article 80(1) (b), (c), (d) or (e), it will provide a written notice to the Personon whom the requirement is being imposed.
Article 80(1)(a) empowers the
DFSAto enter business premises of a Personduring the course of an investigation for the purpose of inspecting and copying information or documents. This power will be exercised when the DFSAconsiders that such Personis or may be able to provide information or documents that are or may be relevant to an investigation.
DFSAwill generally not provide prior notice of an inspection in circumstances where the provision of prior notice may prejudice the investigation.
When exercising its power to enter business premises under Article 80(1)(a), the
DFSAmay:17(a) require any appropriate Personto:(i) make available any relevant information stored at the business premises for inspection or copying; or(ii) convert any relevant information into a physical form capable of being copied; and(b) use the facilities of the occupier of the business premises, free of charge, to make copies.
17 Article 80(2).
Production of Information
Article 80(1)(b) empowers the
DFSAto require a Personto give, or procure the giving of, information. The DFSAconsiders that the term "information" should be interpreted broadly, in accordance with its ordinary meaning.
Information may include, for example, the following:(a) knowledge communicated or received concerning a particular matter, fact or circumstance;(b) knowledge gained through work, commerce, study, communication, research or instruction;(c) data obtained as output from a computer by means of processing input data with a program or any data at any stage of processing including input, output, storage or transmission data;(d) an explanation or statement about a matter;(e) the identification of a
Person, matter or thing; and(f) the provision of a response to a question.
DFSAwill allow a reasonable period for compliance with the requirement to give information. The reasonableness of the requirement will depend upon the circumstances of each case. The DFSAmay, in some circumstances, require the giving of information straightaway where the giving of prior notice may prejudice the investigation.
Production of Documents
Article 80(1)(c) empowers the
DFSAto require a Personto produce, or procure the production of, specified documents. The DFSAconsiders that the term "document" should be interpreted broadly, in accordance with its ordinary meaning. Specified documents may include, for example, any record of information, including:(a) anything on which there is writing;(b) anything on which there are marks, figures, symbols or perforations having a meaning for Personsqualified to interpret them;(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or(d) a map, plan, drawing or photograph.
This power can only be used when an investigation has commenced and the
DFSAconsiders that the Personto whom the notice is addressed is, or may be, able to produce documents which may be relevant to the investigation.
Article 80(1)(c) empowers the
DFSAto require production of original documents or copies. Whether original or copy documents are required by the DFSAwill be determined taking into account the facts and circumstances of the investigation.
When exercising its Article 80(1)(c) power, the
DFSAmay retain possession of any original document for so long as is necessary for the investigation to which the notice relates. When a Personis unable to produce documents in compliance with a requirement made by the DFSA, the DFSAmay require the Personto state, to the best of that Person'sknowledge or belief, where the documents may be found and who last had possession, custody or control of those documents.
DFSAwill allow a reasonable period of time for compliance with the requirement to produce documents. The reasonableness of the requirement will depend upon the circumstances of each case. The DFSAmay, in some circumstances, require the production of documents straightaway, where the giving of prior notice may prejudice the investigation.
Article 80(1)(d) empowers the
DFSAto require a Person(the interviewee) to attend before an officer, employee or agent of the DFSA(the interviewer) for a compulsory interview to provide oral evidence relevant to an investigation it is conducting.
During the course of an investigation, not all interviews will be conducted under compulsion. The
DFSAmay, where appropriate, conduct voluntary interviews. The decision as to whether a compulsory or voluntary interview will be conducted will depend upon the circumstances of the particular case.
Personattending a compulsory interview must first be served with a written notice requiring his attendance. An interviewee is not entitled to refuse or fail to answer a question on the basis that his answers may incriminate him or make him liable for a penalty.18
18 Article 82.
A compulsory interview will be conducted in private and the interviewer may give directions19 to the interviewee regarding:(a) who may be present during the interview;(b) swearing an oath, or giving an affirmation, that the answers provided will be true;(c) what, if any, information may be disclosed by the interviewee or any other
Personpresent at the interview to any third party;(d) the conduct of any Personand the manner in which they will participate during the interview; and(e) answering any question which is relevant to the investigation.
19 Article 80(3).
An interviewee is entitled to legal representation during the course of a compulsory or voluntary interview. At the conclusion of the interview, the lawyer will be permitted to address any issues with the interviewer or interviewee relevant to the investigation. However, the lawyer is not permitted to answer questions on behalf of the interviewee or obstruct the investigation.
All compulsory interviews will be recorded. The
DFSAwill, upon a written request from the interviewee at the conclusion of the interview, provide the interviewee or his lawyer with a copy of the recording or a transcript of the interview. The provision of a recording or transcript may be subject to any reasonable conditions imposed by the DFSA.
Article 80(1)(e) empowers the
DFSAto require a Personto give it any assistance in relation to an investigation which the Personis able to give.
DFSAconsiders that providing assistance may include requiring a Personto do a physical act or provide information to advance an investigation. For example, this may include the situation where the DFSArequires a Personto provide assistance by commenting on the accuracy of a document or compiling information that had been stored in a different manner.
The power under Article 80(1)(e) can be used independently, or in conjunction with, the exercise of other Article 80(1) powers. For example, the
DFSAcan exercise its powers under Article 80(1)(d), to require a Personto attend a compulsory interview and under Article 80(1)(e), to require the interviewee to provide reasonable assistance during the interview. For example, the interviewee may be required, during the interview, to draw a diagram, or locate and produce a document referred to in an answer to a question.
When carrying out its regulatory functions, the
DFSAmust maintain confidentiality of information, unless disclosure is expressly sanctioned by Article 38. The DFSA'sPolicy Statement with respect to Confidential Regulatory Information outlines its policy in respect of the treatment of information and documents.
DFSAmay also impose obligations of confidentiality in respect of information and documents provided during the exercise of its powers under Article 80(1).
DFSAcan make directions20 to protect the confidentiality of information and documents which are part of a compulsory interview.
20 Article 80(3)(b).
DFSAcan direct the recipient of an Article 80(1) (b), (c), (d) or (e) notice not to disclose the receipt of the notice, or any information relating to compliance with it, to any other Person, other than his legal representative, if it considers that such disclosure may hinder an investigation21.
21 Article 80A(6).
Confidentiality directions are made to ensure that an investigation is not prejudiced by the disclosure of the nature of the information sought or the questions asked during an investigation. In each case, the
DFSAneeds to consider whether or not such directions are appropriate in the circumstances of that matter.
Parties who are required to comply with a requirement made by the
DFSAduring the course of an investigation, and Personswho are the subject of an investigation, benefit from certain protections in the Regulatory Law, including:(a) Article 38, which provides that confidential information provided to the DFSAmust not be disclosed except in certain limited circumstances;(b) Article 80A(2), which provides that where a Persontakes part in a compulsory interview, any statements made during the interview cannot be disclosed by the DFSAto a law enforcement agency for the purpose of criminal proceedings unless the Personconsents to the disclosure or the DFSAis required by law or court order to disclose the statement; and(c) Article 81, which ensures that a Personwho is required to comply with a requirement made during the course of an investigation cannot be subject to any liability or liable in any proceeding because of that Person'scompliance with the requirement.
Claims of Privilege and Other Protections
A claim by a
Personthat information is a Privileged Communicationis not of itself an excuse for failing to comply with a requirement made by the DFSAduring the course of an investigation.22
22 Article 82.
A lawyer may refuse to comply with a requirement to provide information where to comply would require the lawyer to disclose a
Privileged Communicationmade by, to, or on behalf of, the lawyer in his capacity as a lawyer in relation to a client.
Should a lawyer refuse to disclose a
Privileged Communication, the lawyer must disclose sufficient information to identify the Personentitled to claim the privilege and the document which contains the privileged information. In such a case, the DFSAconsiders it appropriate for a lawyer to secure those documents, pending the resolution of any claim for privilege.
Enforcement of the DFSA's Investigative Powers
23 Article 84(1).
Articles 84(1) and (2) empower the
DFSAto apply to the Courtfor an injunction or the issue of a search warrant in order to enforce compliance with its requirements under Articles 73, 74 or 80. An application to the Courtfor a search warrant will be made in circumstances where:(a) information or documents were required to be given or produced by the exercise of a compulsory power;(b) the documents or information required to be produced have not been given or produced; and(c) the DFSAhas reasonable grounds to suspect that within the next three business days, the information or those documents are, or may be, on particular premises.
Courtexercise its discretion to issue a search warrant, it may be addressed to a named Dubai Police Officer together with any other individual, including a DFSAofficer or third party, named in the warrant.
DFSAmay exercise its right to apply for a search warrant, rather than seeking compliance with its requirement through some other process (such as an injunction), only where it is satisfied that:(a) the preconditions in Article 84(2) for the issue of a warrant are met;(b) the DFSAconsiders it necessary or desirable to seek the assistance of the Dubai Police;(c) there does not appear to be a legitimate basis for non-compliance; and(d) in the absence of the execution of a search warrant, the information or documents sought may be removed or destroyed or otherwise not made available.
Any material seized by officers of the
DFSApursuant to a search warrant issued under Article 84 may be dealt with by the DFSAas if the material had been produced to it under a notice to produce documents.
Obstruction of the DFSA
Personmust not, without reasonable excuse, engage in conduct that is intended to obstruct the DFSAin the exercise of its investigative powers by any means including, but not limited to, the following:(a) the destruction of documents;(b) the failure to give or produce information or documents specified by the DFSA;(c) the failure to attend before the DFSAat a specified time and place to answer questions;(d) the giving of information that is false or misleading; or(e) the failure to give any assistance in relation to an investigation which the Personis able to give24.
24 Article 83.
Any breach of Article 83 will be regarded seriously by the
DFSAand appropriate action will be taken.
Return of Information and Documents
DFSA25 has obtained originals of information or documents during the course of an investigation, the DFSAwill usually return such information or documents to the Person, from whom the information and documents were received, as soon as practicable after the conclusion of the investigation or related proceedings.
Where information or documents have been produced to the
DFSAin the course of an investigation to assist another regulator or agency, the DFSAmay26 release the information or documents to that other regulator or agency. The information and documents will usually be returned to the Person, from whom the information and documents were received, as soon as practicable after receiving them back from the other regulator or agency.