A voluntary information request from the Commerce Commission can raise important legal and practical considerations for a business. While providing information voluntarily may help address the Commission’s concerns or assist with its processes, it is important to understand the implications before responding. In this alert, we outline the differences between voluntary requests and compulsory notices, and the key considerations when deciding how to engage.
Who should read this alert, and why?
This alert is relevant to business leaders and those responsible for legal, compliance, and regulatory affairs. It will be of particular interest if your business receives a Commission information request, whether in connection with its own conduct or because it holds information relevant to an investigation into another party or to the Commission’s merger review processes.
The Commission’s Investigation Guidelines (June 2025) explain its investigation process and approach to gathering information. Understanding that approach, and your business’s rights and obligations, can help you decide whether and how to engage.
What powers does the Commission have?
The Commission has broad powers to require the provision of information and documents and compel attendance at interviews under section 98 of the Commerce Act 1986 and section 47G of the Fair Trading Act 1986. Section 180 of the Grocery Industry Competition Act 2023 applies the Commerce Act’s information-gathering framework to grocery investigations, and section 182 provides the Commission with further expanded powers for the purpose of performing or exercising its functions, duties, and powers under that Act. Other industry specific regulatory regimes also give the Commission information gathering powers.
In many cases, the Commission seeks information voluntarily before or instead of using its compulsory powers, giving the recipient a choice about whether to respond. It does not, however, have to seek voluntary assistance first and may issue a compulsory notice at the outset. Establishing which type of request your business has received is therefore an important first step.
Voluntary engagement: Key considerations
- Voluntary engagement can give your business greater flexibility in managing its response: In practice, a voluntary request offers an opportunity to discuss its scope, explain what information is available, and agree a practical timetable or staged delivery. Those discussions can also allow your business to explain the commercial context and address any misunderstandings early.
- Cooperation may influence the enforcement response and any future penalty: The Commission takes cooperation into account when assessing its enforcement response. The degree of cooperation may influence its next steps, how the investigation is resolved, and any penalty that might apply. A penalty discount may be available for cooperation with the Commission’s investigation, although responding voluntarily does not guarantee that an investigation will be closed or that a particular discount will be available.
- Consider how the information may be used, not just the work involved in responding: Information supplied voluntarily, whether in documents, informal communications, or interviews, may be used as evidence against your business or others, including in criminal or pecuniary penalty proceedings (subject to applicable evidential rules and protections). Even if your business is only a third-party information holder, its response may raise questions about its own conduct. Voluntary engagement does not prevent the Commission from later using compulsory powers.
Does a compulsory notice put you in a different position?
A compulsory notice may be appropriate where confidentiality, privacy, or other legal obligations restrict voluntary disclosure. A valid compulsory notice creates a legal obligation to provide information and/or documents, subject to applicable protections (including for legal professional privilege). The Commission recognises that some recipients may need a notice before they can assist. If you face restrictions on voluntary disclosure but otherwise wish to assist, raise this with the Commission so that the appropriate process can be considered.
There are also limited protections for statements made in response to a question put by or before the Commission. Such statements cannot be admitted as evidence against their maker in criminal or pecuniary penalty proceedings, subject to exceptions including proceedings for misleading the Commission or perjury. There is currently some ambiguity in the Commerce Act as to whether these protections only apply to compelled statements, although the Commission’s position is the protections are limited in this way and do not extend to voluntary statements. This ambiguity will be resolved once the Commerce (Promoting Competition and Other Matters) Amendment Bill is passed; the Bill will amend the protection to clarify that it only applies to statements made under compulsion. In any event, there are limits to the protections. Even where the protections apply, the statement can be used in other civil proceedings. The protections also:
- do not extend to documents provided to the Commission;
- do not extend to information provided which is not strictly in response to a question put by or before the Commission;
- do not prevent use against another person. For example, answers compelled from an employee in their personal capacity may be used against the employer, or one group company’s answers against another. Where an individual responds on behalf of a company, it is important to establish who is responding and whose statement is being provided; and
- do not prevent the Commission from pursuing further lines of enquiry arising from the answers. Those enquiries may lead to other evidence that can be used in subsequent enforcement proceedings.
The precise protection depends on the applicable legislation and statutory power, the material requested, and who provides the information. Legal advice is therefore important when assessing whether these protections affect your approach to a voluntary request.
Failure to comply with a valid compulsory notice without reasonable excuse is a criminal offence. If the scope or deadline presents difficulties, it is important to engage with the Commission promptly to seek any necessary variation or extension. Unless the notice is varied or an extension is granted, you must continue to work to the required deadline.
What else should you consider before responding?
- Preservation and coordination: On receiving a voluntary request relating to an investigation of a potential breach, you should consider taking steps to preserve potentially relevant records and whether routine deletion should be suspended. The Commission may also expressly request preservation. Appointing a response lead can help ensure a consistent and efficient process.
- Accuracy and completeness: Whether information is supplied voluntarily or under compulsion, your business has a legal duty to provide complete, truthful, and accurate responses. Knowingly misleading or deceiving the Commission, or attempting to do so, is a criminal offence. Checking the facts with those who hold the relevant knowledge, avoiding speculation, and making any limitations in a response clear can help prevent misleading statements or omissions. If an error comes to light, it should be addressed promptly.
- Privilege and wider implications: Before disclosing information, it is important to review it for legal professional privilege. Privileged material need not be supplied under a compulsory notice, whereas confidentiality or commercial sensitivity alone does not excuse compliance. The implications for each entity and individual involved may differ: information may raise issues beyond the immediate investigation or be shared with other agencies, including overseas regulators, where the law permits. If the interests of the business and any individuals may differ, separate legal advice may be appropriate.
- Confidentiality: Information held by the Commission is subject to the Official Information Act 1982, whether supplied voluntarily or compulsorily. Although withholding grounds may protect commercial interests, privacy, confidentiality, or an investigation, protection is not automatic and some grounds require a public-interest balance. For that reason, it is important to identify sensitive information, clearly mark it as confidential, and explain (or be ready to explain) the likely harm from disclosure. If proceedings follow, relevant information becomes subject to court disclosure or discovery requirements, with court protections potentially available where necessary.
- Insurance: It is also worth checking early whether the business or any individuals have relevant insurance cover and whether any notification requirements apply, or if you need to discuss your approach with the insurer.
How can we help?
An effective response takes account of both the Commission’s processes and the implications for your business. Early advice can help you weigh the benefits and risks of voluntary cooperation, protect privilege and confidentiality, and manage the response efficiently.
Our Competition and regulatory team can help with responding to Commission investigations or enquiries, including information requests, document review, and preparation for interviews. Please contact us if you receive a request or would like to discuss your approach to engaging with the Commission.
This alert is general information, not legal advice. The appropriate response depends on the request and the circumstances.
This article was co-authored by Damian Bachor, a Senior Solicitor in our Competition and regulatory team.
