The Panama Papers have captured the public’s and the legal community’s attention, with blockbuster disclosures of the offshore dealings of various prominent persons. The investigation so far has been controlled by a team of journalists from various organizations, who have access to a purpose-built database of an estimated 11 million computer files, and have been working with it for months to develop the stories now being published. They have not made public, however, the underlying data. While regulators and enforcement bodies around the world doubtless would love to get their hands on the entire trove of documents, indications are that they have not. Indeed, the website of the Süddeutsche Zeitung, which is the news organization that was initially contacted by the source of the Panama Papers data, states that it will not “make all the data publicly available and neither will we hand the data over to law enforcement authorities.” http://panamapapers.sueddeutsche.de/articles/5703c8fba1bb8d3c3495b67f/.On the other hand, the International Consortium of Investigative Journalists (which is collaborating on the Panama Papers project) has indicated that it will make the data available in May. The ICIJ’s website does not state how it plans to handle law enforcement inquiries for the underlying Panama Papers data.
On both sides of the Atlantic, recent news stories have focused on some different ways the authorities are attempting to obtain access to the information. First, both in the U.S. and the U.K., some regulators are using an indirect approach to get access to some of the information—demanding that banks disclose to those regulators documents and information relating to the banks’ dealings with Mossack Fonseca, the Panamanian law firm from which the data was taken. Thus, Bloomberg reports that New York’s Department of Financial Services has ordered 13 foreign banks to provide documents and information, including communications with Mossack Fonseca, as well as records identifying any New York-based personnel who had a position with any Mossack Fonseca-established shell companies. http://www.bloomberg.com/news/articles/2016-04-20/ny-regulator-asks-banks-for-records-linked-to-panama-papers-firm. Similarly, in the U.K., the Financial Conduct Authority has ordered approximately 20 banks to produce information relating to their dealings with Mossack Fonseca. https://next.ft.com/content/8c9d4944-fc23-11e5-b5f5-070dca6d0a0d. Second, recent news has revealed some information about what prosecutors are doing. In the U.S., the United States Attorney for the Southern District of New York wrote a letter to the ICIJ stating that his office had opened a criminal investigation and requesting that the ICIJ provide information (presumably voluntarily). The ICIJ quickly declined, stating that it did not intend to participate in the investigation, and noting that it is “shielded by the First Amendment and other legal protections from becoming an arm of law enforcement.” https://panamapapers.icij.org/20160421-us-investigation-hongkong-editor.html. In the U.K., the head of the Serious Fraud Office, David Green, noted during a conference co-sponsored by Brown Rudnick and Outer Temple Chambers that the files "are being and will be accessed" without clarifying whether the agency actually had them. http://uk.reuters.com/article/uk-panama-tax-britain-idUKKCN0XH1QA. At the same conference, the Financial Conduct Authority Head of Enforcement, Mark Steward, confirmed that he had not seen the files, noting “most of us on the law enforcement side haven't seen what the media has seen.”
There is, of course, the more direct approach adopted by Panamanian and Swiss authorities, which raided offices of Mossack Fonseca quickly after the Panama Papers were first published. It remains to be seen whether U.S. and U.K. authorities will attempt to compel access to the underlying data, either from journalists or Mossack Fonseca, or will continue to rely on published information (and leads from it) as well as indirect sources of the same information, such as that sought from banks.