Ruling protects accredited investors’ privacy

The names of accredited investors who purchase exempt securities must stay secret, Ontario’s privacy commissioner has ruled.

The June 28 ruling upheld a decision by the Ontario Securities Commission (OSC) to deny access to identifying information from a participant in a class action suit alleging insider misconduct.

According to the decision from the province’s Information and Privacy Commissioner (IPC), the OSC responded to a freedom of information request by providing information contained in exempt distribution reports on two companies, but declined to disclose the names of accredited retail investors for a third company.

The regulator said it withheld the information about individual accredited investors, “determining that the corporate purchaser information was not personal information but that the names of individual investors was.”

The regulator’s decision was appealed to the IPC on the grounds that it’s in the public interest to disclose the names of the accredited investors as they may have been involved in an alleged stock market manipulation underlying an ongoing class action suit.

Further, “the appellant states that he is seeking the information on behalf of a class of investors in a certified class action and he is not seeking ‘information about individual investors and their personal investment decisions,'” the IPC’s decision stated.

The OSC argued that the identities of individual accredited investors is personal information “because its disclosure would reveal that the individuals made private investment decisions to purchase particular securities.”

The IPC sided with the OSC in its ruling, concluding that the test to qualify as an accredited investor is strictly financial — so the identities of accredited investors count as personal, rather than professional, information.

“[T]he definition of accredited investor does not require an individual to have any special training or licence or to take any special courses to qualify for that status. Rather, an accredited investor may simply be an individual who, either alone or with a spouse, earns or has amassed a sufficient sum of money, assets or investments to satisfy the definition,” the decision said.

Further, disclosing the information would “constitute an unjustified invasion” of privacy, the IPC stated: “names of the accredited investors, along with the disclosed information about the amount each accredited investor invested, would reveal financial transactions in which the individual has been involved, which falls within the definition of personal information.”

The appellant in the case had argued that the public interest should override this expectation of privacy.

“The appellant argues that the information he seeks will reveal the extent of cross-ownership by insiders and their family members of the target company immediately prior to its acquisition,” the decision noted.

But the OSC maintained that any disclosure should be sought as part of the legal action, not through a freedom of information request. The OSC also argued that, while potential misconduct in the markets is a matter of public interest, it’s not substantial enough to override the investors’ privacy rights.

The IPC again sided with the regulator, finding that while investor class actions may serve a public interest, in this case, the legal action is largely a private civil case.

“In my view, the appellant’s rationale for requesting this information, namely for the purposes of the class action, does not establish any compelling public interest that clearly outweighs the purpose of the mandatory personal privacy exemption,” the IPC’s decision said.

James Langton

James is a senior reporter for Advisor.ca and its sister publication, Investment Executive. He has been reporting on regulation, securities law, industry news and more since 1994.